188 Wis. 487 | Wis. | 1926
Lead Opinion
The plaintiff in this action for damages was injured when he collided with an automobile driven by the defendant on the evening of May 25, 1921. The plaintiff had been attending'a theater, and upon coming out about 9 o’clock found it was raining and crossed the street and proceeded on a run down the street to the right. The defendant was driving in a southwesterly direction upon East Wilson street in the city of Madison at the time in question and was approaching the place where South Butler street intersects East Wilson street at right angles. The plaintiff was running east on King street, which joins East Wilson at the point where East Wilson, and South Butler streets intersect. The plaintiff testified that he saw the defendant’s car as it approached the junction of the streets at about twenty-five miles an hour; that he slowed up, thinking that the defendant might turn at right angles into Butler street; that the course of the car led him to believe that the defendant was turning and about to continue up King street, so that he proceeded across Butler street; that the defendant’s car was suddenly swung about into Butler1 street on the left side of the street, and that he was too far advanced to stop and retreat and so attempted to get across in front óf the automobile, but was struck by the right end of the front bumper upon his right leg and knocked down? The defendant testified, and was corroborated by the other occupants of the automobile, that he drove up East Wilson street and made the turn into Butler street at a rate of about twelve miles an hour; that he had seen the plaintiff on King street just before making the turn; that he turned into Butler street on the right side of that street and suddenly perceived the plaintiff in front of the automobile; that he put on the brakes; but that before the automobile could
Two witnesses who were walking along the south side of King street in an easterly direction testified that they saw the plaintiff and the automobile of the defendant but did not see the accident; that upon hearing the collision they looked towards the sound and saw the car of the defendant proceeding along the left side of Butler street; that they rushed over and picked up the plaintiff, who was lying near the east curb, and helped to carry him across the street to the automobile of the defendant which had stopped on the left side of the street.
At the trial the plaintiff’s counsel amended the complaint by inserting certain ordinances with respect to the manner of turning to the right, which ordinances were, though unknown to the court at the time, in conflict with a statute recently enacted. The jury found that the defendant passed to the left of the center of .the intersection in making the turn into Butler street and that he was negligent in so doing; that the defendant was driving at a speed in excess of fifteen miles an hour, and that in so doing he was negligent and that this negligence was a proximate cause of the accident; that the plaintiff was not guilty of contributory negligence.
Judgment was entered for the plaintiff in the sum of $3,500 and costs, and from'this jtidgment the defendant appeals on the grounds that the plaintiff was guilty of contributory negligence as a matter of law; that the amendment of the complaint with reference to the ordinances was prejudicial error; that the answer to the first question of the verdict was entirely unsupported by the evidence and so influenced the verdict as to require a new trial; and that there was other error.
“Plaintiff further alleges that said defendant, as he drove from Wilson street into Butler street, and proceeded up Butler street, at and just prior to the time he struck the plaintiff, drove to the west of the center line of Butler street, in violation of the ordinance of the city of Madison providing as follows: ‘Vehicles in motion shall keep either*491 to the right of the center of the street or as near the right-hand curb as possible.
The defendant’s counsel objected on the grounds that no such claim had'been made in the complaint or the former amendment and that there had been no opportunity to prepare questions or instructions nor make proper investigation, and that the ordinance was not in force or effect. The amendment was allowed on the ground that the whole subject had been fully litigated and that the rights of the parties would not be prejudiced.
It is now argued by counsel for the defendant that there was prejudicial error in allowing these amendments on the ground of surprise, especially as it is claimed that the plaintiff made radical changes in his testimony given under sec. 4096 and that given at the trial. If the court had allowed the continuance and the subject were before us whether such allowance was proper, we should approve the order, or if the trial court had directed a new trial solely on these grounds we should not be disposed to overrule the order. Schlag v. C., M. & St. P. R. Co. 152 Wis. 165, 139 N. W. 756. When the trial judge granted the amendments and denied a continuance he gave his reasons for holding that there was no prejudicial surprise. The court had the right to exercise a discretion in this matter and we do not think it was abused.
But counsel for the appellant argue that the introduction of these ordinances and the instructions relating to them were erroneous and prejudicial on other grounds than that of surprise. The circumstances under which one of the amendments was allowed are very well stated in a portion of the decision of the trial judge as follows:
“When the amendment to the complaint was allowed" setting up violation of city ordinances as added grounds of negligence, the court relied upon Oshkosh v. Campbell, 151 Wis. 567, 569, 139 N. W. 316, where it was held that a similar ordinance was not in conflict with the state statute.*492 Neither counsel nor. the court then knew that that statute had been so amended since that time as to take this case out of the rule of the Oshkosh Case. The court is satisfied that an ordinance requiring the driver of an automobile, in making a turn to the right at street intersections, to keep as near the right-hand curb as practical is not in strict conformity with the provision of sec. 1636 — 49& of the Statutes, which requires nothing more than that the driver of an automobile shall keep to the right of the center of the intersection.”
Part of sec. 1636 — 49b is as follows:
“Any such person so operating a motor vehicle shall, at the intersection of public highways, keep to the right of the center of such intersection of such highway when turning to the right and pass to the right of the center of such intersection when turning to the left.”
This language came into the statute in 1913 after the decision in Oshkosh v. Campbell, 151 Wis. 567, 139 N. W. 316, which was governed by ch. 516 of the Laws of 1907 and ch. 305 of the Laws of 1905. Without tracing the history of the statutes,, it suffices to say that when the accident happened one of the sections of the statute regulating the use of automobiles declared that the provisions of secs. 1636 — 47 to 1636 — 57 “shall be uniform throughout the state.” After expressly naming certain requirements which municipalities could not make by ordinance and naming a class of parks and highways to which the statute did not apply, the section provided that the provisions, of the statute should “not prohibit any city, village, county, town board or local authority from passing any ordinance, resolution, rule or regulation in strict conformity with the provisions of section 1636 — 47 to 1636 — 57 inclusive.” Sec. 1636 — 55 of the Statutes of 1919-1921. It seems too plain to call for discussion that the ordinances received in evidence were not in strict conformity with the statute but that they were wholly inconsistent with it, and therefore had no
“Mr. Stewart, as a pedestrian lawfully upon the street, had the right to act upon the assumption that Dr. Olson in driving his automobile in and upon the street would act in compliance with the law and would obey the ordinary and usual rules of the road.”
The ordinances, if valid, were just as much the law as the statutes. Counsel for the plaintiff still insist that the ordinances were in effect, and doubtless they greatly relied on them. It would be a telling argument to the jury that the defendant had manifestly violated the law as declared by the ordinances, and, if the jury so believed, they would more readily believe that he had also violated the speed law. The statute required nothing more than that the driver of an automobile shall keep to the right of the center of the
On the question of the point of intersection the court correctly instructed the jury as follows:
“By the center of the intersection of Wilson and Butler streets is meant the point where the center line of Butler street — that is,, a line drawn parallel to the curbs of Butler street and half way between those curbs and extended across Wilson street — meets a similar line drawn along the center of Wilson street parallel to the curbs of Wilson street and half way between such curbs. It does not mean a point on a line drawn across from the end of the sidewalk or any part of the sidewalk at the northeast corner of Wilson and Butler streets to the opposite corner or sidewalk of Butler, Wilson, and King streets.”
As already stated, in answer to thé first question the jury found that the defendant, as he turned, failed to drive to the right of the center of the intersection of Wilson and Butler streets, and in other answers that such failure was negligence, the probable cause of the injury, and that an injury to the pedestrian should have-been foreseen. It was and still is the claim of the counsel for the plaintiff that the center of intersection is the center of the crosswalk of Butler street at the junction of Butler street and King street. The intersection as defined by the court is many feet in a south
In the respondent’s brief considerable attention is given to the question of the negligence of the defendant. Wherever the preponderance of the evidence may be on this subject, there was such proof that this question was for the jury, and it calls for no discussion on this appeal.
The case presents one quite remarkable feature. The plaintiff was examined adversely under sec. 4096 eighteen months or so before the trial, and in considerable detail gave his version of the manner in which the accident happened. The record of his cross-examination at the trial discloses more than a score of instances in which he declared that statements made by him in the former examination were false or not true or incorrect. We shall not elaborate on these changes, but it is enough to say that in many respects they were very important and in some respects changed the entire theory of the action. We do not discuss those conflicts in the plaintiff’s testimony because that was a subject for consideration by the jury. The testimony of a witness may be confused, inconsistent, even so contradictory as to greatly impair his credibility, but it is generally the province of the jury, not that of the court, to determine its weight. It is the claim of counsel for the respondent, accepted by the trial court, that these changes in testimony may be explained by the nervous condition of the plaintiff on both examinations. It must be said, however, that the record'shows that the witness is intelligent, that he seemed careful in making his answers, often asking for an explanation or a repetition of the question.
There is one very important feature in the testimony given on both examinations in which there is no conflict. It related to facts so simple and so unrelated to other facts that there could be no confusion or misunderstanding. The plaintiff testified that as he went along on the sidewalk on
Many authorities are cited by the respective counsel, but none of them are closely analogous to the instant case. Since the plaintiff constantly saw the approaching car with its bright lights, there was abundant warning. He testified that the car was being driven at an excessive rate of speed, hence there was no reason for indulging in the presumption that the speed law would not be violated. The case does not come within the emergency doctrine that one who is
There is much discussion in the briefs as to the exact, location of the plaintiff and the automobile when and after the collision occurred. Since the testimony was practically undisputed that after the collision the body of the plaintiff was found within a very few feet of the eásterly curb of Butler street, counsel for the defendant argue that it was demonstrated as a physical fact that the collision must have occurred on that side of the street. On the other hand,, it is argued that the reverse is true because there was a great preponderance in the evidence that when the car stopped it was on the westerly side. In view of the excitement and confusion incident to such a collision in the nighttime, we do not attach to these circumstances so great importance as do counsel, although in some cases there may be physical facts of this kind which are of great significance. As already indicated, we do not base our decision on the inconsistencies and contradictions in the testimony of the plaintiff, but on his undisputed testimony as to his own conduct. Although the burden of proof of contributory negligence
Numerous other points are raised in the briefs which it becomes unnecessary to discuss..
By the Court. — Judgment reversed, and the cause remanded with directions to dismiss the complaint.
Dissenting Opinion
(dissenting). I think the question of plaintiff’s contributory negligence was a question for the jury. Whether he was negligent depended upon whether, he was in the exercise of such care as is usually exercised by the great mass of rpankind under the same or similar circuin-stances. It was a rainy night, and he was running down the sidewalk. Certainly there was nothing unusual about that; in fact, it was conduct quite usual under such circumstances. That could not be held negligence — as a matter of law at least, — and I fail to perceive on what theory running across Butler street can be held negligence as a matter of law. The law is well established that one must look before crossing a railroad track. It is also well established that one must look up and down a street which one is about to cross, and take note of approaching vehicles. However, I know of no rule of law which requires any particular standard of conduct on the part of one traveling along a sidewalk on a busy thoroughfare approaching' a crosswalk with reference to -moving vehicles on the same street with him. He must look up and down the street he proposes to cross and take note of vehicles on that street. But that is not this case. Here he saw an automobile coming along the same street upon which he was running. He knew of course that it was within the range of possibility that that car. might turn off the street it' was then on, into Butler street, which he was about to cross. Some importance is attached in the opinion
I am authorized to state that Mr. Justice Crownhart concurs in these views.