Werner v. Yellow Cab Co.

177 Wis. 592 | Wis. | 1922

The following opinion was filed May 9, 1922:

Owen, J.

The negligence, charged in the complaint, on the part of the defendant’s driver is the high rate of speed and failure to blow the horn. The driver, of the cab testified that he blew the horn as he approached the intersection. The court held that there was no evidence to contradict the testimony of the driver, and that as to this element of negligence no jury question was presented.

There was ample evidence to show that the cab was being driven at a very high rate of speed, and consequently the finding of the jury to the effect that the driver of the defendant’s cab failed to exercise ordinary care in operating the automobile as it approached the place of collision cannot be disturbed.

The principal contention made here is that the plaintiff was guilty of contributory negligence as a matter of law. It is true that by virtue of the provisions of sec. 1636 — 49, Stat^., defendant’s cab had the right of way at the intersection, and this statutory provision affords the principal basis for defendant’s contention. It must be regarded as a verity for present purposes that the plaintiff saw defendant’s cab west of the street-car track on Second street when he was at a point ten or fifteen feet north of the north curb line on Wells street. By reference to the plat introduced in evidence it appears that the cab was then more than 150 feet from the place of collision. • Plaintiff was approximately sixty feet from the place of collision. He estimated that he had abundant time to cx-oss the intersection ahead of the cab, driving at from twelve to fifteen miles an hour. It is apparent that if the cab was approaching at anything like a lawful rate of speed plaintiff had an abundance of time to cross the intersection ahead of the cab. In view of the fact that when plaintiff made his observation he was justified in the belief that he had ample time to cross ahead of the cab, it is impossible for us to say that he was guilty of contributory negligence as a matter of law in his failure to make later observations. Although he knew the cab was coming at a ■high rate of speed, he also knew that the cab was from two and one-half to three times as far from the point of their intersection as he was; that the view of the cab driver was free and unobstructed; and that it was entirely possible for the cab driver to slow down before reaching the intersection. Under these circumstances it was plainly a jury question as to whether he was negligent in his failure to give further attention to the approaching cab.

Appellant also contends that the damages are excessive and that the court erred in specified particulars in submitting the question of damages to the jury. This assignment of error does not require special treatment. We discover no error in the charge of the court bearing upon this question, and we consider that the damages are not excessive.

By the Court. — Judgment affirmed.

A motion for a rehearing was denied, with $25 costs, on July 8, 1922.