Stephenson v. Wisconsin Gas & Electric Co.

202 N.W. 798, 186 Wis. 403, 1925 Wisc. LEXIS 262

• Court: Wisconsin Supreme Court
• Decided: March 10, 1925
• Status: Published

Opinions

Rosenberry, J.

It appears from the record that the court also ordered judgment for the defendant notwithstanding the verdict. However, we find it not necessary to consider that aspect of the case.

The wife of plaintiff, who was driving the car at the time of the accident, in her testimony made no statement as to distances. It appears, however, from her testimony that it was daylight; that she saw the street car half way down the block to her right — that is, to the east, — and that she went forward thinking that she had time to cross the track; that the next time she looked she was just evén with the curb line or the front wheels were a trifle past the curb line, when she applied her brakes and came to a stop with the front wheels of the car within the zone of danger. She knew of the location of the street-car track upon Grand avenue. Mrs. Eliason, who was riding with her at the time, testified that when they were twenty-five feet south of Grand avenue she could see the rear end of the street car, which was then about 125 feet east of the east line of Maplewood avenue, coming at least twenty-five miles per hour, at least two and one-half times as fast as the automobile was _ traveling, and that the rate of speed of the street car could be observed. There was nothing to obstruct the view of the driver.

It is argued very strenuously that the court erred in holding that the answer to cprestion 11 controlled the answer to question 13. The finding of the jury in response to question 11 was of a specific fact, while the finding of the jury in response to question 13 was of a general conclusion, and we are of the opinion that the trial court correctly held that the verdict was inconsistent and that under the evidence the answer to question 11 was a direct finding of contributory negligence amply sustained by the evidence.

It is contended that this case is ruled by Dahinden v. Milwaukee E. R. & L. Co. 169 Wis. 1, 171 N. W. 669. In this case it was plainly to be seen that the street car was not approaching at a lawful rate of speed, as appears from the testimony of Mrs. Eliason, and it was the duty of the driver of the automobile to observe ordinary care under the circumstances as they existed and as they were apparent to her by the use of her senses. This the jury found in response to question 11 she did not do. Such being the fact, she was guilty of contributory negligence. The court fully instructed the jury as to the rule set out in the Dahinden Case, and under that instruction the jury found contrary to the plaintiff’s contention.

This case is ruled by Vetter v. Southern Wis. R. Co. 140 Wis. 296, 122 N. W. 731.

By the Court. — Judgment affirmed.