Sullivan v. Lutz

| Wis. | Jun 5, 1923

Rosenberry, J.

It is contended by plaintiff that the court erred in not instructing the jury in accordance with the provisions of sec. 1636 — 49, Stats. 1921, the material part of which is as follows:

“At the intersection of any street or crossroad, and where, for any cause, the view in the direction in which the vehicle is proceeding, shall be obstructed, the speed shall be reduced to such a rate as will tend to avoid danger of accident.”

The jury were instructed generally as to the law of the road and that the law provided that

“No person shall operate or drive any automobile . . . recklessly or at a rate of speed greater than is reasonable and proper, having regard to the width, traffic and use of the highways and the general and usual rules of the road, <?r so as to endanger the property, life or limb of any person.”

The trial court was of the opinion that the statute in regard to obstruction of view was not applicable, and we concur in that view. The only obstruction to defendant’s view in this case was that of the Ford sedan, which was preceding him on the highway. The statute specifically prescribes the duty of drivers under such circumstances, and we hold that that part of sec. 1636 — 49 applies either to natural objects, fog, dust, or other like condition, and not to moving cars upon the highway.

Upon the whole case we are of the opinion that the question of whether or not the defendant was negligent was a jury question. We shall not attempt to set out the evidence.

It was strenuously urged upon the argument that undisputed evidence having established the fact that the defendant’s car was crosswise of the street, that the front portion thereof was upon his left-hand side and in a place where, under the circumstances, it had no right to be, there was conclusive proof of negligence, and that the court should say that the defendant was guilty of negligence as a matter of law.

The argument would have much force were it not for the fact that the evidence shows — at least the jury might have so found — that the position of defendant’s car at the time in question was due to the skidding of the car. Having lost control of the car, the defendant was not responsible for what happened thereafter unless he was guilty of negligence in its management, which negligence resulted in the loss of control. The alleged negligence in this case consisted in driving the car at the time and place and under the circumstances in question upon a slippery road, at a high rate of speed, or at least at a rate of speed which made it dangerous. Whether or not the defendant was guilty of a want of ordinary care in the .management and control of his car immediately prior to its skidding is a question of fact and one peculiarly within the province of the jury.

In Linden v. Miller, 172 Wis. 20, 177 N. W. 909, it was said:

“It is a well known physical fact that cars may skid on greasy or slippery roads without fault either on account of the manner of handling the car or on account of its being there. No negligence as a matter of law can be charged to the fact that defendant ran his car on Prospect avenue that day on a snowy and slippery roadway.”

The evidence in this case was such as would have sustained a verdict in favor of the plaintiff. It is quite clear from the evidence that the plaintiff was not guilty of contributory negligence. The question of whether or not the defendant was negligent was clearly for the jury, and, while we might arrive at a different conclusion upon the evidence, we cannot, under well established rules, disturb the verdict, it having been approved by the trial court.

By the Court. — Judgment affirmed.