Feyrer v. Durbrow

172 Wis. 71 | Wis. | 1920

Owen, J.

Notwithstanding what was said in Shortle vs Sheill, ante, p. 53, 178 N. W. 304, decided herewith, concerning the finality of the verdicts of juries in cases of this nature, we are convinced that the verdict and 'judgment in this case are unsupported by a scintilla of evidence. The general situation presented by the facts is a typical and familiar one. The driver of an automobile is proceeding along a street. A pedestrian heedlessly steps from the curb directly in the path of the automobile. They discover each other at about the same time. The driver of the automobile promptly applies his brakes, the pedestrian halts momentarily, each is uncertain of' what the other is going to do, both do the same thing, and the pedestrian is struck and injured. That is what happened in this case, as conclusively appears by the evidence of the plaintiff as well as of the defendant. While the jury found that the defendant drove the automobile at an excessive rate of speed, there is no evidence whatever to support this except that of the plaintiff, who testifies that the defendant was driving the automobile at twenty-five or thirty miles an hour. He admits, however, that when he first saw the automobile it was only from two to seven feet from him. .That the automobile ran only three or four feet after striking the boy is conclusively established. The boy had no experience that would enable him to judge of the speed of automobiles. But the best judge could not form a very accurate idea of the rate of speed at which an automobile but from two to seven feet away was bearing down upon him. The physical facts show that the automobile was brought to a stop within a very short distance from the point where it struck the boy. The pavement was damp. The boy discovered the automobile when he was but a few feet distant from the curb. The driver could not have discovered the boy much sooner, yet he brought the machine to a stop by the time the boy reached the center of the street.

The other testimony in the case is to the effect that the automobile was not going to exceed twelve or fifteen miles an hour, and the physical facts show that this must have been true. We do not think that the defendant’s negligence, therefore, can be predicated upon excessive rate of speed. Neither can it be predicated upon his failure to blow the horn. While all the testimony in the case except that of the plaintiff is to the effect that he did blow the hom upon discovering the boy, we do not see how the conclusion can be reached that his failure to blow the horn was the proximate cause of the accident. In the first place, we know of no rule of law requiring the driver of an automobile to blow his horn as he approaches a street intersection. It is apparent that the boy could see the automobile coming as soon as the driver thereof could see the boy in the street. If the boy was not negligent in failing to discover the automobile, the driver of the automobile certainly was not negligent in failing to discover the presence of the boy in the street. That they 'discovered each other at about the same time is apparent. The boy momentarily stopped. This is testified to by the defendant and admitted by the boy. This no doubt marks the time when the boy discovered the automobile and, according to the testimony of the defendant, it also mark's the time when he discovered the boy. As he was under no obligation to sound the horn because of approaching the intersection of the crossing, in order for such failure to constitute the proximate cause of the accident it must be held that he should have sounded the horn immediately upon discovering the boy. This he said he .did, but whether he did or not would seem to be immaterial, because the boy discovered him at the same time.

The jury found that the boy was not negligent in not discovering the automobile before he did, and as he was in just as good a position to discover the automobile as the driver thereof was to discover the boy, how can it be said that the latter was negligent in failing to discover the boy before he did? According to the testimony of the boy the automobile was from two to seven feet away from him when he discovered it. According to the defendant the distance was ten or fifteen feet. The fact that the automobile was brought to a stop within three or four feet from the place where it struck the boy indicates that the driver must have acted with promptness and that the car must have been under good control. In no view of the evidence can we find any support fqf the verdict. The same considerations that acquit the plaintiff of negligence must also acquit the defendant.

By the Court. — ■ Judgment reversed, and cause remanded with instructions to enter judgment in accordance with this opinion.