Smith v. Taylor-Button Co.

179 Wis. 232 | Wis. | 1923

The following opinion was filed December 5, 1922:

Owen, J.

It is contended by the respondent that the order was discretionary and was granted because the court felt that justice had not been done. It is claimed that this is indicated by the fact that the order requires the respondent to pay the costs of the former trial. It is well settled that where a new trial is ordered because the court is not satisfied with the verdict as being against the weight of the evidence, costs should be imposed; but where the motion is granted because the verdict is perverse or entirely unsupported by the evidence, or because the court misdirected the jury or committed other prejudicial error, costs should not be imposed. Pound v. Roan, 45 Wis. 129; Smith v. Lander, 48 Wis. 587, 4 N. W. 767; Schweickhart v. Stuewe, 75, Wis. 157, 43 N. W. 722; Schraer v. Stefan, 80 Wis. 653, 50 N. W. 778. Because of this rule there is a presumption that, when the court imposes costs in an order granting a new trial, the new trial is granted pursuant to the discretionary powers of the court. Second Nat. Bank v. Smith, 118 Wis. 18, 94 N. W. 664. This presumption, however, is not conclusive and obtains only where the contrary does not appear by the record.

In the instant case the trial judge stated his reason for granting a new trial. It appears that the court considered that the failure of the defendant’s truck to keep to. the right when turning onto Fifty-first street constituted a proximate cause of the injury as a matter of law, and that the amount of the damages was the only question for the jury. The reason which actuated the court to grant the new trial thus plainly appearing, the imposition of costs must be regarded as error rather than a conclusive indication of the reason which prompted the granting of a new trial.

This brings us to a consideration of the question of whether the “cutting of the corner” by the truck constituted the proximate cause of the injury as a matter of law. The court did not submit the question of the defendant’s negli- - gence to the jury. In view of the fact that the statute required the driver of the truck to keep to the right and imposed a penalty for his failure so to do, such failure constituted negligence as a matter of law, and the court correctly so held. But does it follow that, while the “cutting of the corner” constituted negligence, such negligence was as a matter of law the proximate cause of the injury? The jury answered this question in the negative, and the finding is fully warranted by the evidence if it was a jury question. It is stated in the briefs that the court granted the motion after a consideration of the case of Haggerty v. Rain, 177 Wis. 374, 186 N. W. 1017. In that case a different situation was presented. There the defendant, who had interposed a counterclaim, was driving east, and as he approached the north-and-south highway on which plaintiff’s car was coming south he “cut the corner,” placing himself immediately in the pathway of the car coming south. If he had kept to the right the driver of the car coming south would have had at least half of the east-and-west highway in which to stop, or he could have turned west and avoided the collision. That case would be parallel to this if defendant’s truck had been going north on Fifty-first street and in turning west on North avenue had failed to keep to the right. It is to be noted that in the Haggerty Case there was a building at the northwest corner of the intersection which obstructed the view of vehicles approaching the intersection from either direction.

It is undisputed that in the instant case the automobile in which plaintiff was riding was proceeding at a very rapid rate of speed. Plaintiff’s own witnesses testified that immediately after the accident there was a mark on the pavement, caused by the sliding of one of the rear wheels which had become locked when the brake was applied, for a distance of thirty feet. The fact that the automobile struck’ this loaded truck with sufficient force to push it sidewise for a distance of from two to six feet is indicative of a very high rate of speed and lack of control on the part of the driver. The jury was warranted in finding that the fact that the truck “cut the corner” did not constitute a proximate cause of the accident. It cannot be said as a matter of law that the driver of the truck should have anticipated a collision with a vehicle coming from the. west. Reasonable anticipation is an essential element of proximate cause. Meyer v. Milwaukee E. R. & L. Co. 116 Wis. 336, 340, 93 N. W. 6. It is well settled that although the violation of a penal statute constitutes negligence, nevertheless, in order to constitute liability, there must be a causal relation between the violation and the injury. Steinkrause v. Eckstein, 170 Wis. 487, 175 N. W. 988; Benesch v. Pagel, 171 Wis. 620, 177 N. W. 861; Westgard v. C., M. & St. P. R. Co. 176 Wis. 636, 187 N. W. 658. We hold that the question of proximate cause wa.s not only a jury question but that its finding in that respect is amply sustained by the evidence, and that judgment should have been rendered in favor of the defendant on the special verdict.

By the Court. — Order reversed, and cause remanded with directions to render judgment dismissing plaintiff’s complaint.

A motion for a rehearing was denied, with $25 costs, on January 9, 1923.