Pfeiffer v. Radke
125 N.W. 934
Wis.
1910
Check Treatment
BARNES, J.

Tbe original and first amended complaints were verified. It is urged that under tbe provisions of sec. 2665, Stats. (1898), it was error to allow a second amendment to tbe complaint, because it was not verified. If it be conceded, as seems to be intimated in Orton v. Scofield, 61 Wis. 382, 21 N. W. 261, that error was committed, it was *515harmless and must be disregarded in this court, under ch. 192, Laws of 1909 (sec. 3072m, Stats.).

The substantial accuracy of the photograph of the highway at and near the place of the accident was sufficiently established so that it was admissible for the purpose for which it was offered. There was no evidence in the case tending to show that the plaintiff was guilty of contributory negligence. In fact, as we view it, the evidence established the contrary. The cases of O’Malley v. Dorn, 7 Wis. 236; Chamberlain v. M. & M. R. Co. 7 Wis. 425; and Dressler v. Davis, 7 Wis. 527, in so far as they hold that a plaintiff in an action for injury to the person must not only show negligence on the part of the defendant, but that, before he makes a prima facie case, he must also affirmatively establish by competent evidence that he was free from contributory negligence, have not been subsequently followed in this court, and must to the extent indicated be considered as overruled. Milwaukee & C. R. Co. v. Hunter, 11 Wis. 160; Achtenhagen v. Watertown, 18 Wis. 331; Randall v. N. W. Tel. Co. 54 Wis. 140, 11 N. W. 419; Hoth v. Peters, 55 Wis. 405, 13 N. W. 219; Welsh v. Argyle, 85 Wis. 307, 311, 55 N. W. 412; Whitty v. Oshkosh, 106 Wis. 87, 91, 81 N. W. 992. No claim is made that the evidence offered on behalf of the plaintiff had any tendency to show that he did not exercise ordinary care.

The substantial questions in the case are: (1) Was the evidence sufficient to warrant the jury in finding that the defendant did not exercise ordinary care in the management of his automobile? (2) Was the jury warranted in finding that want of such care, if it existed, was the proximate cause of the injury ?

The horse was old and well broken and not ordinarily afraid of automobiles. No warning or signal was given to the driver of the ear to apprise him of the fact that the horse was liable to become affrighted. It appears from the evidence that the automobile was proceeding at a moderate rate *516of speed and that there was no collision between the two vehicles. On this evidence the jury might well have acquitted the defendant of blame for the accident, because he had the same right to use the highway that the plaintiff had. On the other hand, there was evidence tending to show that the traveled portion of the highway was twenty-two feet in width at the point where the plaintiff was injured; that there were' ditches on either side of the road; that the plaintiff had driven to the right as far as he could without going into the ditch on the east side; that the defendant as he approached the plaintiff turned his machine from the right side of the road to the left; that he passed so closely to the buggy that there was but from one to two feet between the west wheel track of the buggy and the east wheel track of the car; that it had been raining, and the wheels of the automobile were splashing considerable water and slush from the wheel ruts in the road; and that there was nothing to prevent defendant from keeping entirely to the right side of the center of the road. In view of such evidence the jury might have concluded that, by turning the car to the left toward the horse and running so closely to the buggy that a collision was very narrowly averted, the wheels of the car at the same time splashing water toward if not on the horse, the latter became frightened when it would not have become so had the car been driven nearer to the west side of the road, and that the' defendant was negligent in veering his car to the left and driving it as closely as he did to the horse and buggy. This court cannot say that such inferences might not properly have been drawn by the jury from the evidence, and we conclude that the findings of negligence and proximate cause should stand. It would seem reasonable enough that if the car was to the west side of the road until it approached the horse, and was then turned toward it, such action was calculated to scare the animal and make it more liable to become frightened than if the car had continued in a straight course.

By the Court. — Judgment affirmed.