Bertrand v. Milwaukee Electric Railway & Light Co.

146 N.W. 915, 156 Wis. 639, 1914 Wisc. LEXIS 158

• Court: Wisconsin Supreme Court
• Decided: April 9, 1914
• Status: Published

Opinion

Maeshall, J.

Was the chauffeur guilty of contributory negligence ? That is the question for decision. Some light is thrown upon it by the finding that the driver of the automobile, when he was about to enter upon the track, saw the coming car, but continued, nevertheless, and traveled in the zone of danger some twenty-five feet before the collision. It is evident from this finding and the undisputed evidence as well, that from the time he saw, or might have seen, the car, he could have avoided all danger in either of these ways: (a) stopped before entering the track; (b) turned within the space between the curb and the track; (c) speeded up and gone straight across the track; (d) speeded up his machine after entering upon tbe track. He did neither but went on his way quite leisurely and without any particular attention to clearing the track for the car to pass, but rather with an air of having as much right to compel the motorman to slow up and give him time, as the motorman had to compel him to speed up or take some other course of not delaying the passing of the street car.

There cannot well be but one conclusion from the foregoing. There could hardly be a plainer case of contributory negligence. It is a rather mild characterization of the chauffeur’s conduct to say that he was guilty of ordinary negligence. It has, at least, emphatically that cast. The cause should have been taken from the jury in defendant’s favor at the close of the evidence.

By the GouH. — The judgment is reversed, and cause remanded with directions to render judgment of no cause of action.