Weber v. Swallow

SiebecKER, J. The plaintiff and the defendant were both using the street crossing as travelers, the former with his bicycle and the latter with his automobile. Each had a right to use it for this purpose .with a reasonable regard to the rights of the other in his use of it. Under such circumstances the common-law rule controls them in their mutual duties, namely, each party was in duty bound, in view of the place and circumstances, to exercise reasonable care in the use of the crossing. The jury found defendant guilty of negligence, that such negligence was the proximate cause of plaintiff’s injuries, and that plaintiff was free from any want of ordinary care contributing to produce them. The defendant urges that the evidence shows that he was not guilty of any negligence proximately causing the collision and the consequent injuries to plaintiff. We do not find the evidence clearly and indisputably to this effect.' The jury were fully warranted in finding that defendant’s manner of using the street was wanting in ordinary care in view of his duty to so use it as not to collide with other travelers, and that he exceeded a reasonable rate of speed just prior to and at the time of the collision. It is further claimed by the defendant that plaintiff was guilty of negligence per se in his use of the crossing and that such negligence contributed to produce his injuries. It is manifest from the evidence adduced- that plaintiff either rode [50] near tbe north curbstone of Wisconsin street, near the outside rail of the north street-car track, or on a course between these extremes. If he was riding near the curb, then it is apparent that he had the same opportunity to see defendant ap^-proaching to pass over the crossing that defendant had of seeing him and that he had an equal opportunity of avoiding a collision. He had an open view to see defendant as soon as the automobile emerged from behind the car. At this time plaintiff and defendant were so nearly equidistant from the point where they collided that plaintiff, in the exercise of ordinary care, could have observed defendant approaching and have avoided colliding with him. We are led to the conclusion that if plaintiff was riding near the curb he was guilty of a want of ordinary care in not observing defendant and avoiding running into the automobile and that such negligence contributed to produce the collision. If, on the other hand, plaintiff rode so near the street car that he was unable to see defendant in time to avoid colliding with his automobile after it emerged from behind the passing car, then he was guilty of culpable negligence, because he was bound to anticipate that the street crossing might be used by travelers either on foot or in vehicles, whose safety he necessarily imperiled by thus using the road. Such a situation demanded of him a high degree of care and watchfulness for the safety of others by reason of the great liability of colliding with and injuring them. Such conduct by plaintiff was imminently dangerous to others, and therefore was under the circumstances a want of that care that ordinarily careful persons exercise under the same or similar circumstances. Erom the physical facts surrounding the collision it appears that whichever way plaintiff used the street just before and at the time of the collision proves him negligent either in failing to keep a proper lookout and thus avoiding a collision with the defendant, or in so using the street near a passing street car in a manner and at a rate of speed as made it inevi [51] table tbat be would collide witb travelers emerging from behind street cars and attempting to pass over the crossing streets. It follows from the facts adduced that under the most favorable inference permissible respecting plaintiff’s use of the street he was guilty of negligence per se which contributed to produce the injuries of which he complains, and that the court erred in denying defendant’s motion to direct a verdict in the case and to dismiss the complaint. By the Court. — 'Judgment reversed, and the cause remanded with directions to enter judgment dismissing the complaint.