158 Wis. 441 | Wis. | 1914
Travelers on our higlrways haA'e mutual rights and OAve mutual obligations to one another. One of those obligations is to use ordinary care to prevent collisions. When a collision does occur, it will not do to hold one party to a high degree of care and exempt the other from exercising any degree of care whatever. We have no statute per
The essential facts in this case have been quite fully set forth, and if the jury was warranted in finding that the driver •of the coal wagon did not exercise ordinary care, we see no •escape from the conclusion that the finding that plaintiff did •exercise such care is clearly wrong, because, if defendant’s servant was negligent, it is evident that plaintiff was more negligent than he. We think there is no room for controversy on this point. It should be borne in mind that in -our congested public streets people make close calculations and frequently take a good many chances, and that actual rather than theoretical conditions should be taken into account in determining what is ordinary care. Both of these parties no doubt thought they could proceed without a collision. They were mistaken in their calculations, by the narrowest kind of a margin, and probably because of the sudden forward movement of the coal wagon when its front wheels struck the downward incline.
Undoubtedly the defendant’s vehicle had the right of way. This is so under sec. 1636 — 49. The portion of this statute ■dealing with the right of way at street intersections obviously includes all vehicles. If there were no statute on the subject the defendant would be entitled to the right of way under the charter of the city of Racine. This statute was unquestionably violated by the plaintiff. It is a safety law, and or■dinarily the violation of such a statute is negligence. The Tule is not universal in its application, but depends on pre■sumed legislative intent. Griswold v. Camp, 149 Wis. 399, 403, 135 N. W. 754. The tendency of the courts, however, is generally in the direction of finding such intent. Smith v. Milwaukee B. & T. Exch. 91 Wis. 360, 64 N. W. 1041.
It is immaterial whether we hold that defendant was not
By the Court. — Judgment reversed, with directions to dismiss the complaint.