Johnson v. Prideaux

| Wis. | Mar 14, 1922

Owen, J.

The appellant contends that the judgment should be reversed with instructions to render judgment dismissing the plaintiff’s complaint. The right to recover upon the counterclaim does not seem to be insisted upon. We are therefore called upon to consider only whether the judgment rendered against the defendant can be supported upon the facts found by the county court.

It seems that the county court convicted the defendant of negligence because he was.on the left-hand side of the road, contrary to the statute. He gave no weight to the fact that the defendant’s vision was completely obscured by the dense cloud of dust and that he was utterly unable to see where he was going. The finding of the court is that upon becoming enveloped in this cloud of dust “he at once threw off his power, applied his brake, and brought his car to a full stop in a distance of two car lengths or about thirty-six feet from where Bashford’s car had passed him. In going this distance he unconsciously permitted his car to swerve to the left” He was therefore found guilty of negligence for doing that which he could not avoid doing. In defendant's situation it .was utterly impossible for him to see where he was going, and entirely beyond his power to know that he was veering to the left side of the road. It was just as impossible for him to control the car in this respect as though he had been suddenly stricken with blindness or had suffered an apoplectic stroke. It'is plain that the decision of the trial court held him to an impossible degree of care, owing to the complete obstruction of his vision by the dust. The court applied to him the same rule that would obtain if his vision was not obscured.

One is guilty of negligence only when he fails to exercise that care and prudence which is generally observed by the great mass of mankind under the same or similar circumstances. While the law requires the driver of an automobile to keep to the right when meeting another vehicle, one cannot be held guilty of negligence in ■ unconsciously failing to do so where that is impossible by reason of circumstances over which he has no control and for which he is in no sense responsible. The defendant was confronted by an emergency which was not created by his own negligence, and in that emergency it would seem that he did the most prudent thing possible in bringing his car to an immediate stop. We apprehend that no more prudent action under the circumstances could be suggested, and it would be an anomaly to- hold one guilty of negligence who acts with the care and prudence exercised by the defendant under the circumstances then confronting him.

In a note to be found in 6 A. L. R. at page 680, the general proposition is stated that “an automobile driver, who by the negligence of another and not by his own negligence is suddenly placed in an emergency and compelled to act instantly to avoid a collision or injury, is not guilty of negligence if he makes such a choice as a person of ordinary prudence placed in such a position might make, even though he did not make the wisest choice.” The defendant is well within this rule, and this principle alone, without any other consideration, requires a reversal of the judgment with instructions to dismiss the plaintiff’s complaint. .

It therefore becomes unnecessary to consider plaintiff’s negligence. But we cannot refrain from suggesting' that if he had acted as did the defendant, this accident would not have occurred; and it is also to be remarked that by proceeding at a time when he was utterly unable to see anything ahead of his car he was brought within the reason and spirit of the rule announced in Lauson v. Fond du Lac, 141 Wis. 57, 123 N. W. 629. Whether the fact that the driver was able to see the edge of the road and thus keep on the right side relieves the plaintiff from the consequences of the rule of the Lauson Case need not be considered.

By the Court. — Judgment reversed, and cause remanded with instructions to enter judgment dismissing plaintiff’s complaint.