Vanden Heuvel v. Schultz, 182 Wis. 612

Vanden Heuvel v. Schultz

182 Wis. 612 | Wis. | 1924

Crownhart, J.

The principal errors relied upon to reverse the judgment of the lower court refer to the instructions of the court to the jury. The instructions so objected to are as follows:

(1) “There is no law in this state requiring the driver of an automobile to blow his horn as he approaches a pedestrian or intersection. They are to be used only as a warning, but a failure to blow the horn cannot be regarded as negligence on the part of the driver if you find that the defendant did not blow his horn in this case.”

(2) “In order to exercise ordinary care one must employ his faculties in order to observe and discover the danger, if the danger is visible and obvious or if the surrounding circumstances and conditions are such as to indicate the presence of danger to a reasonable or ordinarily careful and prudent man, and a failure to discover such'^visible and obvious danger when their attention is not attracted suddenly away from them amounts to want of ordinary care.”

The first instruction evidently related to the first question as to whether the defendant exercised ordinary care, and the second instruction related to the third question as to whether plaintiff was guilty of want of ordinary care.

In considering these instructions we must have in mind the facts and circumstances to which they apply. It appears that the plaintiff was walking on the left-hand side of the highway going in an easterly direction. This would ordinarily be the safer side of the highway upon which to walk, for in. such case the plaintiff could see automobiles approaching him from the east and properly driving on the *615same side of the highway, and at the same time he would ordinarily be in no danger , of being struck by an automobile coming from behind him, which customarily would be on the opposite side of the highway. Manifestly, it is impossible for a person walking on the highway to continuously watch for an automobile coming from behind .him, and on a clear day, where' the automobile driver has an unobstructed view of the highway, there should be no need of a pedestrian keeping a close watch under such circumstances for machines coming from behind. The statute requires the automobile to be equipped with a horn, plainly for the purpose of giving warning, when reasonably necessary, to prevent collisions with others using the highway. It would seem to be very clearly an error for the court to charge that “There is no law in this state requiring the driver of an automobile to blow his horn as he approaches a pedestrian or intersection. They are to be used only as a warning, but a failure to blow the horn cannot be regarded as negligence on the part of the driver if you find that the defendant did not blow his horn in this case.” The law does require the driver of an automobile to use ordinary care, and, under circumstances where ordinary care would require the driver to^ blow his horn, the law so requires. Cunnien v. Superior I. W. Co. 175 Wis. 172, 184 N. W. 767. Whether or not the driver should have blown his horn in. this case was clearly a question for the jury.

On the question of the plaintiff’s negligence the court is of the opinion .that the instruction was not erroneous. By its answer to this question the jury found the plaintiff guilty of want of ordinary care. The result is that the plaintiff could not recover even though the jury had answered the first question in his favor.

By the Court. — The judgment of the circuit court is affirmed.