| Wis. | Dec 5, 1922
There are two reasons why this case ' must be reversed:
First. There is a dispute as to how the accident happened, whether the buggy was hit from behind, or whether the driver of the automobile had turned out of the road to pass the buggy and then lost control of his car and struck the buggy from the side. This is important. If he struck thp buggy from behind, this is a pertinent fact bearing on the question of his negligence.
A woman witness for the plaintiff, who saw the accident at a distance of a block and a half, testified:
“As much as I saw, the automobile just hit the buggy from the back. . . . When I saw the two men they were lying alongside of the buggy, close to the car tracks, and the automobile was right behind the buggy. . . . When I reached the scene of the accident the automobile was stand' ing right behind the buggy.”
Fred Fischer, who viewed the accident 150 feet away, said that the automobile “was standing just a little behind the buggy” immediately after the accident.
Andreas Matanse, who was with the plaintiff in the buggy at the time of the accident, testified:
“The first thing I knew something had hit us from the rear. ... At the time I fell down out of the buggy, I looked to see who had hit us, and then I saw the machine in back of us. Our buggy was about two feet from the curb, and the automobile was right behind us.”
“When we got about to Fifty-fourth -street, something came from the rear and hit us, and I fell out on the right side onto the curb.”
The plaintiff testified:
“I saw the bumper of the car catch the wheel of the buggy, I could see it by looking straight out of the windshield of the car.”
Mrs. Nugent, who was in the car, said:
“As he [defendant] turned out to pass something in the street, a bug of some kind flew in the window and Mr. Millard threw his head back and his hat fell off. Just then he turned the wheel and something caught.”
The defendant’s testimony was as follows:
“I turned' out to pass him and turned out about four feet to the south of the buggy. I wanted to give him plenty of room. ... I had slowed down to less than ten miles an hour when I passed him. ... As I was going by I just got practically up going around' and the window of my car was open, and something or other blew in, it might have been a bug, might have been a leaf, a bee or something, I don’t know, blew right in my face, and I sort of brushed it down with one hand, and as I looked we were caught, the wheel was caught in the bumper, and immediately when that happened I put on the brakes, put on the clutch and the brake and stopped my car.”
There,was other evidence in support of this contention. This clearly made it an issue of fact for the jury." If the jury should find, as they would have a right to -find under the evidence, that defendant struck the buggy from the rear, they might reasonably infer that he was guilty of negligence in driving so close to plaintiff before turning out.
Second. On the defendant’s version of the accident and how it happened, it became a question of fact for the jury to determine whether he exercised ordinary care. It is not every emergency that will justify the driver in losing control of his car. Ordinarily that will be an inference to be drawn by the jury from the facts presented. Here the
By the Court. — The judgment is reversed, with directions to grant a new trial.