Cheves v. Miller

217 N.W. 684, 195 Wis. 106, 1928 Wisc. LEXIS 69

• Court: Wisconsin Supreme Court
• Decided: February 7, 1928
• Status: Published

Opinion

Rosenberry, J.

It is argued here that the plaintiffs are entitled to recover because the defendant was negligent as a matter of law “to operate an automobile at a rate of speed of twenty to twenty-five miles per hour when the wheels on one side of the car are off the pavement and running in soft mud, and the driver is attempting to get the wheels back on the' cement.” This argument rests upon the assumption that the southerly wheels of defendant’s automobile were off the concrete. This is denied by the defendant and by two persons who were riding with him. As the issue was submitted the jury found against this contention. It is further sought to support the conclusion by the argument that because the defendant’s car was on the defendant’s left of the highway and at a place where it ought not to be, the defendant is prima facie guilty of negligence and he has not offered a sufficient explanation or excuse for his conduct.

The defendant’s claim is that his automobile was thrown across the highway because his right wheel struck a ridge of ice somewhere from four to six inches high and the car was deflected without fault on his part. The jury quite apparently accepted the defendant’s version of the accident. A finding in plaintiffs’ favor would have been much more in accord with what seems to us to have been the facts, but there is nothing in the case that enables us to say that the verdict is contrary to the established physical facts. The court quite fully instructed the jury as to the legal significance of the fact that the defendant’s car was on the wrong side of the highway. The jury must have found that it was there without fault on defendant’s part.

By the Court. — Judgments affirmed.