John v. Pierce

Eschweiler, J. It is undisputed in this case that Mr. Johnson, the driver of the car in which plaintiff was riding at the time of the collision, turned to his left as he saw the Pierce car approaching. In so doing he violated the law of the road as embodied in the statutes, secs. 1636 — 49 and 1636 — 49b, in failing to turn to the right in approaching and passing. Such a violation of the penal statutory provisions regulating the use of highways was' of itself negligence. Steinkrause v. Eckstein, 170 Wis. 487, 175 N. W. 988; Yahnke v. Lange, 168 Wis. 512, 516, 170 N. W. 722, and cases cited therein. Under the evidence in this case showing that the collision occurred immediately upon such negligence by Johnson, we are convinced that the finding of the jury that there was no want of ordinary care on Johnson’s part that proximately contributed to produce plaintiff’s injury was very probably arrived at by them on account of errors occurring on the trial and which we must deem prejudicial and requiring a reversal of the judgment.- Immediately after the collision and as some of the injured occupants of the respective automobiles were being taken away from the immediate point of collision, certain conversations- were had with Mr. Johnson,- which, "under the testimony as presented by defendant Pierce concerning them, would warrant an inference by the jury that the collision occurred by reason of Johnson’s negligence rather than that of any other person. Conversations of a similar nature were had a few minutes afterwards when some of the injured persons, including the daughter of defendant Johnson, had been removed to a house in the neighborhood, and still another within an hour or two after the accident at the residence of a friend to which Mr. Johnson, the plaintiff, and others of the party had gone. ■ In charging the jury the court said as follows: “There has been some evidence as to what Mr. Johnson said shortly after the collision. The weight to be given to [49] testimony of admissions is to be determined by the jury. Such testimony should be received with great caution. Statements or admissions of a party satisfactorily proven and understandingly and deliberately made, which bear upon or give character to the acts of a party or throw light upon a pending controversy, may have very great force as evidence and are proper to be considered by the jury. But evidence of casual statements or admissions of a party, made in casual conversation to disinterested persons, should be considered by the jury in determining the weight to be given to them in view of the liability.of witnesses to misunderstand or forget just what was said, depending upon all the surrounding circumstances.” Exception was taken to this portion of the charge, and we think properly. The statements made by Mr. Johnson immediately after and at the place of the collision were properly received as parts of the res gestee. Dixon v. Russell, 156 Wis. 161, 145 N. W. 761; Cohodes v. Menominee & M. L. & T. Co. 149 Wis. 308, 135 N. W. 879; First Nat. Bank v. Industrial Comm. 161 Wis. 526, 154 N. W. 847; Andrzejewski v. Northwestern F. Co. 158 Wis. 170, 177, 148 N. W. 37. Such statements are of material weight and substance, and, being treated as a part of the transaction, they are on the same footing as any other facts relating to the immediate transaction. Being parts of the res gestee, they are in a separate and distinct class from the same statements which, when subsequently made, become mere recitals of a past transaction. An instruction applicable to the one class is either too weak or too strong for the other. The instruction here given covered both classes, but did not point out to the jury the substantial difference between them such as was particularly displayed in this case. From this instruction the jury would naturally but erroneously infer that they were to use more caution in considering and thereby more reluctance in believing the testimony of the witnesses for defendant Pierce in relation to the con50 vérsations which were parts of the res gestee than they were as to the testimony of the same or other witnesses as to other facts immediately surrounding the transaction. Respondent suggests on this appeal that the statements by Mr. Johnson after the interested parties had removed from the scene of- the accident could not be received as binding upon the plaintiff, for the reason that Mr. Johnson could not be considered as more than the agent of the plaintiff so far as the driving of the automobile was concerned, and that therefore his subsequent admissions could not bind the plaintiff under the rule as stated in Bell v. Milwaukee E. R. & L. Co. 169 Wis. 408, 414, 172 N. W. 791. Such an objection was not, however, interposed on the trial, and the testimony remained before the4’'jury' for their consideration, and properly so, in view of the fact that Johnson was at the time still a party to the lawsuit. Defendant Pierce requested the following instruction: “If you find it to be a fact, that as the two automobiles approached one another both machines were on the'south side of the road, the driver of the defendant Pierce’s automobile had a right to expect and assume that the defendant Johnson would observe her approach and would seasonably turn to the right and cross the road to the north side thereof, and her right to so assume continued until such time as it became apparent to her, or would have become apparent to an ordinarily prudent person similarly situated, that defendant Johnson did not intend to turn to the right.” The court did not give the instruction requested, but did charge the jury as follows: “Every operator of an automobile has the right to assume and act upon the assumption that every person whom he meets on the street or highway will exercise ordinary care and caution according to the existing circumstances to avoid injury; that he will not expose himself to danger negligently or recklessly, but will, as is his duty, exercise ordinary care to avoid collision, and if he sees a vehicle before it strikes him or by reasonable use of his .senses could see it in time [51] to avoid the injury, that he will promptly, in the exercise of ordinary care, attempt to avoid the injury.” We'think the instruction given did not sufficiently meet •the law as- applicable to the particular situation involved and the proposed instruction should have been given. Zimmermann v. Mednikoff, 165 Wis. 333, 336, 162 N. W. 349; Klokow v. Harbaugh, 166 Wis. 262, 265, 164 N. W. 999. It is very manifest that had Johnson obeyed the law of the road and kept to the right there would have been no accident. , The driver of defendant Pierce’s car had the right to assume that Johnson would so keep to the right until the contrary intention appeared. The purpose of these highway regulations is in a measure twofold: first, that they shall be obeyed when they come into effect, as here, when two such vehicles approach and pass; and secondly, that each traveler may act in so obeying on his own part with the assumption that the other will also so obey, and may continue in such assumption until he is or ought to be apprised to the contrary. The instruction as given by the court was perfectly proper so far as it went with reference to the general duty of exercising ordinary care, but it did not present the important feature embodied in the statutory duty imposed upon Johnson. Travelers on the highway may well, in the exercise of ordinary care, under many circumstances pass to the left, but public policy has declared that a rule is to be maintained of passing to the right. The failure to do so is of itself negligence as a matter of law, and the instruction as given failed to disclose to the jury that it was not left for them to determine whether the turn to the left-was or was not ordinary care. It is unquestioned by any of the parties that under the law of this state as so recently stated in Puhr v. C. & N. W. R. Co. 171 Wis. 154, 176 N. W. 767, contributory negligence on the part of Mr. Johnson as driver of the car in which plaintiff was riding' would defeat his right'to recover against the defendant Pierce. ■ [52] In the opening statement to the jury, in commenting upon the position of the two cars prior to the collision and the respective claims of their drivers, plaintiff’s counsel said as follows: “We are not very much concerned except that we do not sue our host; we sued the driver of the other car, but the real contest in this case will be between Mr. Johnson and Mr. Pierce to determine who was to blame for this collision.” The denial, at the close of the testimony, of plaintiff’s motion then made for permission to amend his complaint so as to enable him to recover against the defendant Johnson for his negligence, and after the case had been submitted to the jury the granting of the motion, in the presence of the jury, of defendant Johnson for a dismissal of the cause as to him, although accompanied as it was by a caution from the court to give it no weight in their deliberations, might very well have influenced them in determining the question which had been so presented to them by plaintiff in the opening statement concerning the negligence of defendants Johnson and Pierce. The court having deemed it proper to dismiss the action as against Johnson, it would quite reasonably appear to the jury to involve his determination that Johnson was not negligent; yet this was the precise question involved in the third question of the special verdict and answered by the jury in plaintiff’s favor. As this situation will not appear on a subsequent retrial of the case; it is not necessary to determine whether such proceedings and the errors assigned thereupon on this appeal would alone be sufficient to reverse this judgment. Defendant Pierce appealed from that portion of the judgment in the court below as was in favor of the defendant Johnson as against the defendant Pierce dismissing the action as to the defendant Johnson upon the cross-complaint. ' No grounds are urged by defendant Pierce in support of that part of the appeal, and we cannot, from a considera [53] tion of the record, see any grounds for disturbing that part of the judgment. By the Court. — The judgment against the defendant Pierce in favor of plaintiff is reversed, and a new trial granted as between them. The judgment dismissing the cross-complaint of defendant Pierce against the defendant Johnson is affirmed. ‘Siebecker, J., dissents.