Dunkel v. Smith

168 Wis. 257 | Wis. | 1918

Vinje, J.

The trial court held plaintiff guilty of contributory negligence as a matter of law because he knew that vehicles coming up' Wisconsin avenue had the right of way as against him, and because there was an unobstructed view of the avenue in time to- see and avoid collisions with them. Its decision cannot be set aside unless clearly wrong. We think, however, that in this case the question of plaintiff’s negligence was for the jury. Had defendant come on the side of the avenue and Mifflin street which the law required him to' conie and from which quarter the plaintiff was obliged tO1 look for vehicles, a different question would have been presented. But plaintiff’s evidence shows that in turning to the left onto Mifflin street defendant “cut the corner” and came onto the left side of the street where he had no right to be; that he was within about four or five feet of the curb line extended when the accident occurred. This would make him over twenty-five feet beyond the center of Mifflin street and on the wrong side. Even if plaintiff saw defendant in the act of turning onto Mifflin street, as he testified he did, when he reached the curb of Wisconsin avenue, the jury might well say that he could not anticipate that defendant would violate the law of the road and come over on his side. We purposely forbear to discuss the situation further because there must be a new trial and the jury must pass on the question of plaintiff’s negligence upon all the testimony adduced. This they should be permitted to do without any expression on our part as to whether he was or was not negligent.

By the Court. — Judgment reversed, and cause remanded for' a new trial.