Friedrich v. Boulton

Tbe following opinion was filed October 24, 1916 : SiebbcKER, J. Tbe trial court held that tbe evidence showed as matter of law that tbe plaintiff was guilty of contributory negligence. It is well established that if tbe evidence in a personal injury action for negligence is conflicting, or if not, if tbe inferences to be drawn therefrom are doubtful and uncertain, then tbe questions of negligence are for a jury. Tbe plaintiff is also entitled to tbe benefit of every fact reasonably inferable from tbe evidence. Tbe burden of [530] proving negligence in sucb cases rests on the defendant. Clary v. C., M. & St. P. R. Co. 141 Wis. 411, 123 N. W. 649. A nonsuit in an action to recover damages for a personal injury on the ground of negligence is only proper when there is an entire want of evidence tending to show that defendant was negligent or when the evidence conclusively shows that the plaintiff’s negligence contributed to produce the injury. [530] A study of the record before us fails to sustain the trial court’s conclusion that the evidence conclusively shows that the plaintiff was guilty of contributory negligence. The evidence of the parties is in sharp conflict on nearly all the evidentiary facts bearing on the question of plaintiff’s position on the street, the course he took in riding his bicycle-northward, the speed he traveled, the distance he was from the defendant when first he observed defendant coming from behind the coal wagon, the location of the coal wagons, and other detailed facts pertinent to the inquiries whether or not. plaintiff and defendant were guilty of negligence and whether such conduct had any proximate causal relation to the collision. The foregoing statement in connection with the accompanying diagram shows that this evidence of the parties and-other witnesses on these points was in irreconcilable conflict. Upon the statements and inferences most favorable to plaintiff under the evidence adduced the jury would have been justified in finding that plaintiff was riding on his bicycle on a path east of the most easterly street-car track along-the line T-T about eleven feet from the easterly curb of the street, and when at the point T the defendant suddenly “shot” from behind the coal wagon, S, with his automobile, and ran directly into plaintiff at the point T-Y and injured him. Plaintiff’s description of the whole transaction also permits of the inference that he had neither time nor opportunity to meet this sudden emergency and avoid the defendant’s car. It was also a jury question whether or not plaint [531] iff was negligent in riding on the path he did in view of the conditions of the street, the other vehicles that were going over the viaduct at this time, and the requirements of the ordinance that he “keep to the right and as near the right-hand curb as possible.” It cannot be said that the plaintiff was conclusively negligent in riding on a path about eleven feet from the right-hand curb if his claim that the other parts of the street afforded ample space to all other vehicles and travelers to use the street without colliding with him is found to be true. It is also evident, if his version of the affair is correct, that defendant had ample space to drive his car safely between plaintiff and the coal wagons and that defendant tinnecessarily took the course which inevitably led him into collision with plaintiff where he states he was riding. There is also a conflict in the evidence as to the speed defendant and plaintiff were traveling from the time each ■one could have observed the other. The inference to be drawn from the evidence on this point is uncertain and doubtful and clearly within the province of a jury. Upon all the evidentiary facts and circumstances the questions of defendant’s negligence and plaintiff’s contributory negligence are clearly for determination by a jury, and the trial court erred in awarding a nonsuit. By the Gourt. — The judgment of nonsuit is reversed, and the cause is remanded to the circuit court for a new trial. A motion for a rehearing was denied, with $25 costs, on January 16, 1917.