142 Wis. 512 | Wis. | 1910
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
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
By the Court. — Judgment affirmed.