Luethe v. Schmidt-Gaertner Co., 170 Wis. 590

Luethe v. Schmidt-Gaertner Co.

170 Wis. 590 | Wis. | 1920

Lead Opinion

Siebecker, J.

The circuit co>urt concluded that the driver of the motor truck was not guilty of any want of ordinary care which proxirnatelv-^caused the plaintiff’s in*594jury and that the evidence shows conclusively that the plaintiff was guilty of a want of ordinary care which proxi-raately caused her injuries. The circuit court also held that the trial court erred in receiving the opinion evidence as to the speed of the truck, based'on the skid marks made by the wheels of the truck at the time of collision, and that the court erroneously interj ected into the issues submitted to the jury a question as to whether or not the truck was traveling at a speed of ten miles per hour at the time it was driven past the strfeet car.

Was it error to receive the opinion evidence of the witness Baumgartner as to the speed the truck was traveling at the time it passed the street car ? There was evidence to the effect that there were skid marks of the truck wheels on the street for a distance equal to the street crossing and other evidence showing long skid marks. This furnished a proper ground for an expert to give his opinion as to the speed at which the truck was traveling when the brakes were applied. It was not error to receive it.

The civil court propounded this inquiry to the jury: “Was the defendant’s automobile driven at a greater speed than ten miles per hour while it was passing the street car at the time and place in question?” It is urged by the defendant that the submission of this question was error and misled the jury in answer to the second question of the special verdict, through the confusion of the court in directing the jury that they need not answer this question in the event of answering the second question in the affirmative. True,- the court did in the first instance so state, but upon having his attention called thereto he corrected this statement and informed the jury that if the second question was answered in the negative no answer to the fourth question was required. We find no prejudicial error in the record on this ground. The general instruction given which bears on the inquiry propounded by question 2 was a correct statement of the law on the subject and properly informed the *595jury as to their duties in considering their answer upon this issue in the case. The duty of defendant in operating its automobile truck on the street is defined by the Statutes (sec. 1636 — 49): ' •

“No person shall operate . . . any automobile . . . recklessly or at a rate of speed greater than is reasonable and proper, having regard to the width, traffic and use of the highways and the general and usual rules of the road, or so as to endanger the . . . life or limb of any person, . . . provided . .,. that ... at the intersection of any street or crossroad, . . . the speed shall be reduced to such a rate as will tend to avoid danger of accident.”

It is manifest, under the facts and circumstances adduced in evidence, that question 2 covers the inquiry as to whether or not the defendant negligently omitted to perform this duty towards plaintiff. We are persuaded that the evidence on this issue of the case presents a question for determination by a jury and that the circuit court erred in setting aside the answer to question 2 and in holding as a matter of law that defendant’s driver was not guilty of a want of ordinary care. In the light of this finding and the third finding of the jury that such failure of the driver to exercise ordinary care was the proximate cause of plaintiff’s 'injuries, questions 4 and 5 of the special verdict are immaterial and superfluous to establish defendant’s liability for actionable negligence. Further consideration of questions 4 and 5 of the verdict is not required. The verdict is complete and establishes actionable negligence aside from the inquiries in these two questions.

The inquiry remains, Does the evidence sustain the finding of the jury that the plaintiff was not guilty of a want of ordinary care proximately contributing to the injuries? An examination of the evidence has convinced us that the trial court correctly held. that.the evidence sustains the jury on this issue. The evidence is conflicting on the points as to the course the plaintiff traveled after she observed the street *596car coming from the north and which she undertook to board at the southwest corner of Murray avenue and Belle-view crossing; how far to the north, if any, of the usual stopping place of the street it stopped on this occasion; whether or not'it had come to a full stop before plaintiff crossed in front of it; whether or not the driver of the truck had an opportunity to observe that the car was slowing down to stop or had in fact stopped before he passed it; at what rate of speed he was driving immediately before and at the time of collision with plaintiff, and other points of fact involved in the inquiry as to plaintiff’s failure to exercise ordinary care to avoid collision with defendant’s motor truck on the occasion in question.

We are of the opinion'that it cannot be held as a matter of law that plaintiff was guilty of negligence in her use of the street as a pedestrian at the place she testifies she crossed it in order to reach the point to board the street car. The facts and circumstances disclosing her conduct and acts in accomplishing her purpose are of such a nature as to permit of different inferences as to whether or not she was guilty, of any want of ordinary care that contributed to this accident. The evidence on this question presents, in our opinion, a jury issue, and the tidal court properly subhiitted this issue to the jury for determination. It follows that the circuit court erred in reversing the judgment of the civil court.

By the Court. — The judgment appealed from is reversed, and the cause is remanded to the circuit court with direction to affirm the judgment of the civil court.

Dissenting Opinion

Eschweiler, J.

(dissenting). The passing 'by the plaintiff in front of the moving street car and then into the zone of passing vehicles without looking for any vehicle that might be and in this instance was lawfully alongside the moving car, in my judgment was properly declared to be contributory negligence as a matter of law by the circuit court.