Riggles v. Priest

MARSHALL, J. The jury having convicted respondent of having been guilty of negligence on the occasion in question, which was the proximate cause of the accident, no prejudicial error was committed unless erroneous instructions were given, or correct ones refused as to whether respondent was guilty of such negligence by reason of having violated sec. 1636 — 49, Stats. 1911, which required a traveler on the highway with an automobile or other vehicle to observe “the general and usual rules of the road,” or because of having violated sec. 1636 — 49a, Stats. 1913, which required a person in driving an automobile upon the highway not to do so at a greater speed than ten miles per hour while within 150 feet [203] and passing any other, automobile or other vehicle going in an opposite direction, — and such error, or errors, may probably have affected the judgment of the jnry in respect to the subject of contributory pegligence, or such a violation constitutes gross negligence, rendering contributory negligence immaterial. No error was committed in giving the instruction as to respondent’s duty to observe the general and usual rules of the road. Such rules did not absolutely preclude him from reasonably invading his left-hand side of the traveled way in passing the vehicle in front of him. He was required to pass on the left. There was ample opportunity for doing so and yet leave an abundance of room for appellant to pass safely in case of his paying reasonable attention to his movements.' For the respondent to travel at a speed of more than ten miles per hour while within the 150 feet before the collision was in direct violation of the statute and plain error was committed in refusing the instruction to that effect. Such conduct was negligence as a matter of law and the jury should have been instructed accordingly. Notwithstanding commission pf the error indicated, it is considered that appellant was not prejudiced thereby. The jury would doubtless have convicted him of having been guilty of contributory negligence had the error not occurred. They found he had ample opportunity for seeing respondent approaching, long before the headlight on the other automobile interfered therewith and there was plenty of room for him to pass respondent, had he turned toward his right-hand curb. There was a space of ten feet between the point of collision and such curb and seven or eight feet of clear space. The jury found further, in effect, that though appellant ought to have known that respondent was approaching the automobile in front of him .and was liable to pass it and turn tp the left according to the rules of the road, he went, for the seventy-five feet before the collision, so near the' center of the [204] street as to cause tlie blinding effect mentioned, when he might have avoided it by turning to his right away from the region of the direct rays of the headlight. On the whole, the jury had good ground for believing, and probably did believe, that appellant was traveling in a very heedless way when the collision occurred, and that had he paid reasonable attention to his movements, it could easily have been avoided. They practically so found in the finding that “a traveler situated as plaintiff was, by looking ahead a sufficient distance from the place of collision could have observed the defendant’s car as it overtook the other car in time to have, by the exercise of ordinary care, avoided the collision.” That finding must be viewed, reasonably, in connection with the other findings. So viewed there is no ambiguity about it. It means that, as appellant approached the place of collision, he had a sufficient opportunity, by the exercise of ordinary care, to have observed the approaching automobile and avoided the collision. It is suggested that the error in failing to instruct .the jury properly as to the circumstance of respondent approaching the point of collision at an illegal rate of speed should be held prejudicial to appellant on the subject of contributory negligence, under what was held in Ludke v. Burck, 160 Wis. 440, 445, 152 N. W. 190. There the trial court improperly withdrew from the jury the question of defendant’s violation of the statute as to speed limit and, on that account, granted a new trial, notwithstanding the plaintiff was found guilty of contributory negligence. In sustaining that this court said that it was apparent the jury were probably misled by the withdrawal of the questions and deprived of the benefit of the evidence of violation of the statute in considering the subject of contributory negligence. - That was said in respect to the facts of the particular case, — not as a rule that, in any case where the matter is material a failure to properly instruct the jury that violation of a safety statute is negligence as a matter of law, will so affect the subject of contributory negli [205] gence as to require a new trial in case of the finding by the jury in respect thereto being unfavorable to the defendant. In our judgment, in view of the facts here, it is not clear that had the error not occurred, the result might probably have been favorable to appellant as to his contributory negligence. This case is widely distinguishable from th'e Ludlce Gase and it is considered that the logic of such case does not govern. There the questions as to speed limit were submitted and, after the jury had deliberated over twenty-four hours without making much progress the court withdrew them. It was because thereof and the general course of the trial that this court reached the conclusion to which we have alluded. The question of whether respondent’s violation of the statute was, as matter of course, gross negligence, rendering contributory negligence of plaintiff immaterial to his right to recover, under the doctrine of Pizzo v. Wiemann, 149 Wis. 235, 134 N. W. 899, is ruled in the negative by Ludke v. Burck, 160 Wis. 440, 152 N. W. 190, for the reasons therein stated. The court there declined to extend the rule of the Pizzo Gase to violations of speed-limit statutes such as the one involved here. By the Court. — The judgment is affirmed.