209 Wis. 402 | Wis. | 1932
At the time of the accident plaintiff was driving west from Madison to Verona in a Chevrolet coupé. A truck owned by defendant was being driven east upon the
The accident happened on highway 18, near the Dane county asylum. In front of the asylurn is a strip of asphalt paving some thirty-five feet wide. On either side of the asphalt the road is the ordinary twenty-foot concrete highway. At the point where the asphalt joins the concrete highway on the east there is an expansion strip of asphalt filler. According to the evidence of all the parties, the accident happened approximately at this point: The left front portion of plaintiff’s Chevrolet coupé collided with the rack and rear wheel of defendant’s truck. Plaintiff claims that he drove upon his own side of the highway, and that the accident was caused by the fact that the rack of defendant’s truck extended over the center line of the highway. According to the driver and other occupant of defendant’s truck, the plaintiff proceeded on his own side of the highway until his headlights were about even with those of • defendant’s truck, and then swerved into defendant’s truck. Both of defendant’s witnesses claimed that the truck was entirely upon its right side of the road.
Upon the above facts, standing alone, there was clearly a jury question. However, the contention was made by the defendant, and sustained by the trial court, that plaintiff’s testimony is contrary to the undisputed physical facts, which clearly demonstrate that defendant’s truck, including the rack, was well to its right of the center line. It is conceded that this accident happened at or slightly east of the expansion strip which marks the eastern boundary between the
It does not follow, however, that the verdict was properly directed for the defendant. While it must be considered that the evidence establishes beyond reasonable dispute that
“Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished by the jury in the proportion to the amount of negligence attributable to the person recovering.”
We are confronted, therefore, with two questions: first, whether this court, as a matter of law, can say that the conceded negligence of the defendant in operating its truck without clearance lights did not proximately contribute to the accident and injury of plaintiff; and second, whether, as a matter of law, this court can say that the negligence of the plaintiff in operating his car on the wrong side of the highway was greater than that of defendant in operating its car without the clearance lights. It is our conclusion that each question must receive a negative answer. With respect to the contention that there was no causal relation between defendant’s negligence and the injury, there are several observations to be made. Plaintiff was approaching defendant’s truck, and the question as to how much clearance to yield called for the exercise of judgment upon his part. It is a fact, of which notice may be taken, that in approaching a car in the nighttime an instinctive judgment, based upon the location of the headlights of the approaching car and the assumption that the vehicle is of ordinary width, is usually
In Brown v. Haertel, 210 Wis. -, 244 N. W. 633, 246 N. W. 691, where plaintiff’s negligence consisted of a failure to look before entering an intersection, and that of defendant consisted of excessive speed and failure to yield the right of way, it was held that the question whether the negligence of plaintiff was as great as that of defendant was for the jury. It was pointed out there that under some circumstances it might be proper for a court to determine as a matter of law that the negligence of the plaintiff was as great as that of the defendant. “If the negligence of each consisted simply in a failure to look, and they both had ample opportunity to discover each other, it might be that their negligence would have to be held equal.” However, it is evident that the instances in which a court can say as a matter of law that the negligence of the plaintiff is equal to or greater than that of the defendant will be extremely rare, and will ordinarily be lim
For the foregoing reasons it follows that these were questions for the jury, in view of the provisions of sec. 331.045, Stats., and that it was error to direct a verdict.
By the Court. — Judgment reversed, and cause remanded with directions to grant a new trial.