Lloyd v. Pugh

Barnes, J. Travelers on our higlrways haA'e mutual rights and OAve mutual obligations to one another. One of those obligations is to use ordinary care to prevent collisions. When a collision does occur, it will not do to hold one party to a high degree of care and exempt the other from exercising any degree of care whatever. We have no statute per [445] mitting the injured party to secure a partial recovery where .neither party exercises ordinary care. Failnre on the part of the injured party to exercise such care is contributory negli.gence which defeats recovery where such failure is the proximate cause of the injury. The essential facts in this case have been quite fully set forth, and if the jury was warranted in finding that the driver •of the coal wagon did not exercise ordinary care, we see no •escape from the conclusion that the finding that plaintiff did •exercise such care is clearly wrong, because, if defendant’s servant was negligent, it is evident that plaintiff was more negligent than he. We think there is no room for controversy on this point. It should be borne in mind that in -our congested public streets people make close calculations and frequently take a good many chances, and that actual rather than theoretical conditions should be taken into account in determining what is ordinary care. Both of these parties no doubt thought they could proceed without a collision. They were mistaken in their calculations, by the narrowest kind of a margin, and probably because of the sudden forward movement of the coal wagon when its front wheels struck the downward incline. Undoubtedly the defendant’s vehicle had the right of way. This is so under sec. 1636 — 49. The portion of this statute ■dealing with the right of way at street intersections obviously includes all vehicles. If there were no statute on the subject the defendant would be entitled to the right of way under the charter of the city of Racine. This statute was unquestionably violated by the plaintiff. It is a safety law, and or■dinarily the violation of such a statute is negligence. The Tule is not universal in its application, but depends on pre■sumed legislative intent. Griswold v. Camp, 149 Wis. 399, 403, 135 N. W. 754. The tendency of the courts, however, is generally in the direction of finding such intent. Smith v. Milwaukee B. & T. Exch. 91 Wis. 360, 64 N. W. 1041. [446] In Welch v. Geneva, 110 Wis. 388, 390, 85 N. W. 970, it, was held that where the unlawful act of a person traveling in a highway contributes to his injury there can be no recovery, and this ruling is followed in Walker v. Ontario, 111 Wis. 113, 117, 86 N. W. 566. These cases are distinguished from Sutton v. Wauwatosa, 29 Wis. 21, where recovery was allowed for injury to cattle being driven over a defective bridge on Sunday, because it is said that there was no causal connection between the violation of the Sabbath laws and the defective bridge. There was some evidence tending to show that defendant’s team was somewhat to the west of the center of Ontario street when the collision occurred. This would be significant if plaintiff’s vision was interfered with by reason of the team being on the wrong side of the road.. But she had plenty of opportunity to see the team and did see it, and, having seen it, she should have yielded the right of way if she could not safely pass. We observe no reason why she could not have stopped .her horse or looked back again to see if the street car was in such a position that she might pull her horse to the north so as to keep out of the way of defendant’s team. She knew the team was heavily loaded and was laboring hard in its attempt to climb the incline and that it would be difficult for the driver to stop it or change its course. The trial court seemed to think that the jury might find that plaintiff was confronted with an emergency and that she simply committed an error in judgment. We do not know what the emergency was. She does not claim that she would he in any danger from the street ear if she stopped in time to allow the coal wagon to pass, or that the driver of the coal wagon would deliberately run her down. The most charitable assumption is that plaintiff made an error in judgment in thinking she could pass safely. If this charity be extended to her it should also be extended to the driver. It is immaterial whether we hold that defendant was not [447] negligent or allow the finding of negligence to stand. If the finding he permitted to stand, then the finding that plaintiff «xercised ordinary care cannot stand. In any view of the •case plaintiff cannot recover. By the Court. — Judgment reversed, with directions to dismiss the complaint.