Ortmann v. A. Leath & Co.

205 N.W. 397, 187 Wis. 616, 1925 Wisc. LEXIS 74

Opinion

Doerfler, J.

The Ash driveway was a private driveway, and as the respective drivers of the two vehicles involved approached the intersection, each was charged with the duty of exercising ordinary care in order to avoid a collision. The exercise of ordinary care, under such circumstances, involved a number of considerations, such as the width of Main street, the distance the drivers were from the intersection when they approached it, the' speed of the respective vehicles, the points where they operated their vehicles on the highways when they first observed each other, or when, with - the exercise of ordinary care, they should have made such observation, and the control which each driver had of his automobile. These various considerations must be weighed from the standpoint of practicability, and ordinarily constitute issues which form the proper subjects of solution by a jury. The trial court was of the opinion that the alleged negligence of both parties formed a jury issue, and therefore submitted such issue accordingly to the jury by the questions of the special verdict, all of which questions were answered favorably to the plaintiff. However, upon the usual motions made by the parties after verdict, the court arrived at the conclusion that the answer of the jury to subdivision (b) of question number 1 was contrary to the clear preponderance of the evidence, and he therefore set it aside and struck it out. After a careful review of the evidence we are of the opinion that the order of the court in that respect was fully warranted and justifiable, because the physical facts which developed upon the trial clearly support the conclusion which the trial court arrived at, that tire collision did not occur on the north side of Main street, but on the south side thereof.

There being but two versions presented by the evidence, namely, that of the plaintiff and his witness that the collision took place north of the center of Main street, and that of the defendant and his witnesses that it occurred south of such center, in view of the order of the court but one alternative remains as to the point of collision, and that is the one testified to by defendant’s witnesses. So that we must assume that when the defendant’s truck arrived at a distance of about thirty-six feet from the intersection it was traveling a little south of the center of Main street; that he then turned to the south a distance of about fifteen feet, towards the south curb; that he then proceeded along the curb until he arrived at the intersection, where the collision took place; and that the physical contact of the two machines occurred at a time when the rear wheels of plaintiff’s automobile were about four or five feet from the south curb. In view of the width of defendant’s truck it becomes apparent that the same did not have sufficient clearing to continue on its course without coming in contact with plaintiff’s machine. The trial court evidently was of the opinion that the physical situation as disclosed by the evidence was controlling, and that the same fully accounted for the left front wheel of the truck coming in contact and interlocking with plaintiff’s automobile at a point thereon between the running board and the left rear wheel. The point where plaintiff’s machine was struck by the truck is established by the undisputed evidence.

The main difficulty presented arises from the questions formulated and submitted in the special verdict. Under question 1 (a) the jury found the defendant negligent in failing to slacken the speed of his truck to avoid the collision; and as to question 1 (b) the defendant was also found guilty of negligence in failing to drive to the right of the center of the street. When the jury in its answer to question 2 found that the defendant was negligent with respect both to questions 1 (a) and 1 (b), and after the court had stricken out the answer to question 1 (b), it became physically impossible, by reason of the form, of the second question and the answer thereto, to ascertain whether the finding of proximate cause depended on the answer to question 1 (a) or to question 1 (b). This difficulty could readily have been averted if the question of proximate cause had been submitted separately as to each of the subdivisions of question 1. Defendant’s counsel, therefore, plausibly argue that after the order of the court striking out the answer to question 1 (b) the entire verdict was vitiated, and that the matter of proximate cause was then left entirely to speculation and conjecture, and that therefore the court should have ordered a new trial. The answer stricken out pertained, however, solely to the course the defendant’s truck took, and did not affect in any way its speed or the control which the driver of the truck had as it proceeded along the course of the highway up to the point of collision. Defendant’s driver testified that from the time that he first saw plaintiff’s machine he could have easily stopped his truck three times. From the point of collision until the two machines were stopped the truck traveled a distance of about twelve feet, notwithstanding the application by the truck driver of his emergency brake. This fact may be taken into consideration in determining both the speed of the truck and the control which its driver had and exercised. Assuming that the truck driver’s testimony is true that he could have stopped the machine three times in the short distance that he traveled, and that plaintiff’s machine was shoved a distance of twelve feet after the emergency brake on the truck had been applied, the irresistible conclusion is fastened on our minds that no effort was made to decrease the speed of the truck and to avoid the collision until immediately before the physical contact of the two machines. This clearly fastens negligence onto the defendant as a matter of law, and likewise establishes the proximate cause, and no jury would be warranted in finding otherwise.

But defendant’s counsel ingeniously and plausibly argue that, assuming that the driver of the truck was guilty of negligence in failing to slacken his speed in time to avoid the collision, nevertheless the plaintiff was guilty of negligence as a matter of law which proximately contributed to his injury. Under the undisputed evidence in the case the plaintiff arrived at the intersection first, and if we believe his testimony the truck was then one hundred feet distant. If we believe the testimony of the defendant it was thirty-six feet distant. Main street at the point of the intersection was but twenty-six feet in width. In order to comply with his legal duty plaintiff was obliged to cross the center of Main street and then make his turn to the west. This afforded -him but thirteen feet, namely, the north half of Main street, on which to make the turn. His car was in low when he started out from the rear of the Ash residence, and he proceeded along the private driveway with sufficient gas to enable him to travel at the rate of five miles per hour, and he continued at this rate until the defendant’s truck came in contact with him. He made the usual, necessary observations as he crossed the sidewalk, both towards the east and towards the west. As he started to cross the sidewalk he observed the truck, and estimated that he had ample time within which to safely make the crossing and turn his machine towards the west. According to his' testimony he neither accelerated nor decreased his speed. In crossing the walk he held out his left hand, and continued so to do up to the time of the collision, operating the steering wheel with his right hand. The driver of the truck, according to his own testimony, had thirty-six feet within which to regulate and control the speed of his truck. In determining whether plaintiff was guilty of negligence which proximately contributed to his injury, all of the foregoing facts stated must be taken into consideration. Assuming even that the truck driver’s testimony is true that as the plaintiff with his machine was crossing onto Main street he decreased slightly the speed of his machine, it nevertheless was the legal duty of the defendant’s driver to so operate his machine under the circumstances as to avoid a collision.

Defendant’s counsel strenuously argue that under the circumstances it was the duty of the plaintiff to increase his speed, and that by doing so he would have passed a sufficient distance to the north to enable the truck to pass him in the rear and thus avoid the collision. The difficulty which confronted the plaintiff was real. The street was narrow, and he had but thirteen feet within which to turn. His automobile covered that entire length. That it was necessary for him to, and that he actually did, from the undisputed testimony, exercise due ordinary care under these circumstances, is beyond controversy. While it is true that the jury evidently passed upon the question of .plaintiff’s contributory negligence under the assumption that the collision took place on the north half of Main street, yet, adopting defendant’s version, we cannot say that the plaintiff did not exercise fully every degree of care with which the law burdened him in the operation of his machine.

The answer, therefore, of the jury with respect to plaintiff’s contributory negligence was fully warranted, and with the view herein expressed we hold that he was free from contributory negligence as a matter of law. No other verdict on that subject could be sustained, and we are satisfied that no jury would otherwise find. In the language of the opinion in the case of Stevens v. Montfort State Bank, 183 Wis. 621, 198 N. W. 600, it can hardly be said that the evidence “presented an ultimate issue to be determined by the jury; but whether or not we conclude that an issue was presented in the case, we cannot escape the inevitable conclusion that no jury would be justified in coming to a different conclusion. . .

With the view thus expressed in this opinion, it becomes unnecessary to consider or treat the other errors assigned by the learned counsel for the defendant.

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