217 Wis. 49 | Wis. | 1935
At the time of the accident plaintiff was about sixty-eight years of age. While she was crossing Greenfield avenue, an east and west street, in the city of Milwaukee, from the south to the north, at about 5:15 o’clock in the afternoon of September 19, 1931, she was struck by an automobile . driven by. defendant, Harold Reimer, and severely injured. Just prior to the accident, the plaintiff came out of a store located on the south side of Greenfield avenue, the entrance to which was about forty or fifty feet east of the east line of South Twenty-Seventh street, a north and south intersecting street, intending to visit a bakery located on the other side of the avenue. The plaintiff proceeded a few steps to her right, to the edge of the
The jury found that the defendant was negligent both as to lookout and control of his automobile; that in each of those respects the defendant’s negligence was a cause of the collision; that the plaintiff was not negligent in respect to
The defendant first contends that no evidence was adduced which supports the finding of the jury that he was negligent either in failing to maintain a proper lookout or to control his autofnobile just prior to and at the time of the collision. It is our opinion that this contention is without merit. It is clear that the jury was permitted to find that the defendant was not maintaining a proper lookout. The plaintiff testified that she was struck by the right side of the car when she was at a point about a foot and á half from the south rail of the street-car tracks and about nineteen and one-half feet from the sidewalk. She also testified that she walked from the sidewalk at an ordinary gait; that she first observed defendant’s automobile bearing down upon her when it was twenty to thirty feet away. The defendant testified that just prior to the accident his automobile was being driven at not to exceed about eighteen miles per hour. Calculating that the plaintiff was walking at a rate of about three miles per hour, and assuming that her testimony was true that she had reached a point nineteen and one-half feet from the edge of the sidewalk when the defendant was twenty to thirty feet away, the jury might well have concluded that for several
The defendant argues that, since he did not observe the plaintiff until after he had felt the impact of the collision and since he stopped his automobile within a comparatively short distance, no finding of negligence in respect to control was permissible. The jury may well have concluded that since the defendant was not maintaining a proper lookout while proceeding along a busy city street at about eighteen miles per hour, he did not have his automobile under proper control, although that speed, if accompanied by a proper lookout, would not have been considered ñegligent. It is our opinion, under the circumstances, that the court did not err in refusing to change the answers.
The defendant next contends that the plaintiff was negligent, as a matter of law, in failing, after leaving the sidewalk, to look again for approaching traffic from the west before entering upon the zone of danger. In Salsich v. Bunn, 205 Wis. 524, 238 N. W. 394, it was said that a pedestrian, before crossing a busy city street, should, in the exercise of ordinary care, be required, upon leaving the zone of safety at the sidewalk or curb, to make observations as to approaching traffic from his left. To the same general effect is Mertens v. Lake Shore Y. C. & T. Co. 195 Wis. 646, 218 N. W. 85. However, in this action it appears that the plaintiff did make an observation just before entering the street, and did observe that the traffic light was red and that certain cars were stopped in obedience to it. There was nothing to obstruct her view of the traffic light and the automobiles stopped in obedience to it. On account of the break in the street, she had a better view than she would have had had the avenue been straight. It is our opinion that the plain
The defendant next- contends that the plaintiff’s negligence, as a matter of law, was equal to or greater than that of the defendant. The verdict found that the defendant was negligent in respect to keeping a lookout and in respect to his control of his automobile; and that the plaintiff was negligent only in respect to crossing the avenue at the place east of the crosswalk. Considering that the jury was justified in believing that the defendant, while driving his automobile along a busy city street, failed, for at least several .seconds, to maintain a proper lookout, and that the plaintiff was negligent only in crossing the avenue at a place other than the crosswalk, we cannot say, as a matter of law, that her negligence was equal to or greater than that of the defendant. In comparing the negligence of the defendant with that of the plaintiff, the jury might well have concluded that if the defendant had maintained a proper lookout, the accident would never have occurred, since the defendant was not driving at an excessive rate of speed and his brakes were in good condition.
The defendants next contend that they were prejudiced by certain questions asked one of their witnesses by counsel for the plaintiff. The questions complained of obviously called attention to the fact that the defendant was insured. One of the defendants’ witnesses, who was not a resident of Wisconsin, was asked on cross-examination:
“Q. You were asked to come down by Mr. Reimer’s lawyers, by the adjusters for the insurance company, weren’t you?
“Q. But you didn’t come down on a visit this time ? You came down because they wanted you to testify in this case?
“Q. Your expenses while down here are being paid by the company?”
While such questions would probably have been held to be prejudicial prior to the enactment of ch. 375, Laws of 1931
We have examined the record for the purpose of determining whether the questions were asked for the purpose of prejudicing the jury, or for the purpose of ascertaining what the interest of the witness was in the litigation and whether her testimony was biased. In view of the apparent fact that the witness had not been as frank and candid as one would expect a disinterested witness to be, and that the plaintiff’s counsel had the right to show what interest, if any, the witness had in the litigation, we think the defendants, under all of the circumstances, may not justly complain of the questions asked.
By the. Court. — Judgment affirmed.