Kroehler v. Arntz

221 N.W. 727, 197 Wis. 195, 1928 Wisc. LEXIS 342

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

Opinions

Eschweiler, J.

The trial court, in passing upon the motions made by the respective parties after verdict, held that the answers of the. jury finding no contributory negligence by the deceased could not be sustained. This was upon the ground that the deceased, in the exercise of ordinary care, should have observed the approach of defendant’s car and remained within the safety zone where, he was walking just prior to the accident, or that if, carrying the umbrella as he was, he failed to see that which could have been seen, he was thereby lacking in the ordinary care, that the law requires of a pedestrian crossing a public highway at other than an established or recognized crossing. and under such circumstances as were there present.

Assuming that defendant was negligent in any oí the matters as found by the jury, and particularly .in failing to. keep a closer or more continuous watch upon. the progress of Mr. Kroehler as he was approaching along the', graveled shoulder facing the line of traffic, yet defendant’s negligence, whatever it may have been, cannot, under the facts as here presented, excuse, or avert the effect of the failure of the deceased to look before crossing the highway at the point in question and observe the approaching automobile, in 1¡he direct path of which he was placing himself in so crossing from the east to the west.

We do not consider the situation one within the line of cases holding that a person may be within the field of ordinary care for his own safety in reasonably anticipating that there is ample opportunity to safely cross a highway, in advance of an approaching vehicle, assuming that such, there being no showing to the contrary, is approaching at a lawful and proper rate of speed; as, for instance, Zimmermann v. Mednikoff, 165 Wis. 333, 162 N. W. 349; Saltzberg v. Tax, 185 Wis. 372, 378, 200 N. W. 863; Kuebler v. Klug, 191 Wis. 259, 262, 210 N. W. 701; West v. Day, 193 Wis. 187, 189, 212 N. W. 648; and clearly not within the case cited by appellant of Keicher v. Michaal, 196 Wis. 305, 220 N. W. 179.

We think the ruling by the trial court and as now confirmed is required under the holdings in such cases as Feyrer v. Durbrow, 172 Wis. 71, 74, 178 N. W. 306; Hirschberg v. Milwaukee E. R. & L. Co. 179 Wis. 175, 177, 190 N. W. 829; Brickell v. Trecker, 176 Wis. 557, 560, 186 N. W. 593.

By the Court. — Judgment affirmed.