| Wis. | Feb 7, 1939
The defendant makes several assignments of error but under the view we take of the evidence we need consider only one. That one is that the negligence of the plaintiff was as matter of law as great or greater than that of the defendant. Hence no recovery can be had under the comparative-negligence statute, sec. 331.045, which denies recovery in such case.
The plaintiff sues to recover for injuries sustained in a collision between a bus of the defendant and the automobile she was driving at the intersection of West Highland boulevard and Thirty-Seventh street in Milwaukee. The plaintiff was driving south on Thirty-Seventh street and the bus was traveling east on the boulevard. A jury found both the plaintiff and the bus driver guilty of causative negligence, both as to lookout, and the bus driver as to speed also. The comparative negligence of the two was fixed by the jury, twenty-five per cent to the plaintiff, seventy-five per cent to the bus driver. Judgment was granted to the plaintiff for seventy-five per cent of the damages assessed to the plaintiff.
The boulevard has a grass or parked plot forty feet wide in the center, with a driveway on either side. The south driveway is 28.8 feet wide and for eastbound traffic only. The north driveway is 27.7 feet wide and for westbound
By plaintiff’s testimony she obeyed the stop sign on approaching the westbound driveway of the arterial. She looked both ways. She saw nothing at her left in the westbound driveway to interfere with her crossing that lane. She saw lights which she recognized as of motor vehicles at her right on the eastbound driveway one hundred fifty to two hundred feet away as she thought, but did not notice that a bus was approaching. She started up and proceeded until she neared the center of the grass plot in the center of the boulevard when she looked again to her right and saw the lights of the bus which she thought were then one hundred feet away. She was going ten miles per hour according to her statement. She then proceeded without increasing her speed and without looking again and went over thirty-five feet before reaching the line of travel of the bus which by all the testimony was well to the south of the center of the south driveway. Her judgment as to- the distance of the bus when she last looked west was demonstrably faulty, as according to the undisputed testimony it was traveling only twice as fast as she and would travel not more than seventy feet, while she was traveling thirty-five. While crossing the north driveway it was the plaintiff’s duty to look to her right again before she entered the south driveway, which was in effect a separate street. Heintz v. Schenck, 176 Wis. 562" court="Wis." date_filed="1922-04-11" href="https://app.midpage.ai/document/heintz-v-schenck-8193633?utm_source=webapp" opinion_id="8193633">176 Wis. 562, 568, 186
“Piad plaintiff looked while driving from the crosswalk to the streetcar track . . . looked even once more at the approaching car, he must have observed, according to his own description, that its speed was such as to make the crossing-perilous unless he greatly accelerated the movement of his horse or that of the car was diminished. During all this period, however, with full opportunity to look and see, he*351 proceeded without a glance, relying, if he thought at all, on his reasoning as to the safety. Reasoning, however, is not due care when opportunity for observation exists. It is only when deprived in some degree of such opportunity that one may, consistently with due care, rely on his judgment as to chances.”
The same may be said of the instant plaintiff under the circumstances here existing. At the time of the occurrence involved in the case cited, 1901, there was no1 right-of-way statute applicable to the situation involved as there is here. With stronger reason than there is the rule there applied applicable here. In these days of congested automobile traffic strict obedience to the right-of-way statute is essential to public safety. To excuse violation of it under the circumstances existing in the instant case would be to disregard public safety.
We will compare the conduct of the bus driver with that of the plaintiff. The bus driver claims that he did not see the plaintiff’s car until the instant it was about to pass another car that was ■ stopped on the west side of Thirty-Seventh street close to the center waiting for the bus to pass. Whether a car so stood is highly important in comparing negligence. That a car so stood is testified to by all three occupants of the car. They all testified that they came west on the north driveway and turned south onto the boulevard to go south on Thirty-Seventh street, and stopped to allow the bus to pass. These witnesses are apparently credible. We see no possible reason to doubt the truth of their statement. The bus driver’s attention was fixed on this car which he saw making the turn. He slacked speed to see what the driver was to do and when the car stopped increased his speed somewhat to pass ahead of it. It was then that he first saw the plaintiff’s car. The plaintiff said she did not notice the standing car and two other witnesses did not see it, one the only passenger in the bus and the other the driver of a car
We consider also that there is no evidence to sustain the finding of the jury that the speed of the bus was excessive. The lawful speed limit was thirty miles per hour. The bus was traveling well within that limit. Such is the undisputed testimony and the admitted fact by the plaintiff’s own testimony. True that on a thirty-mile-per-hour street circumstances may exist that render a far less rate of speed negligent, such as ice or fog or storm or the like. But here no such conditions existed, and the burden is on the plaintiff to show such conditions in order to prove a negligent speed. True the bus was approaching a street intersection. There was nothing to the south requiring a stop to yield the right of way. The traffic from the north would presumably yield the right of way. No occasion would arise to reduce speed for traffic from the north until the driver noticed that some
Under the whole situation involved it seems manifest to us that the negligence of the plaintiff exceeded that of the bus driver as matter of law.
By the Court. — The judgment of the circuit court is reversed with directions to dismiss the complaint.