Foster v. Bauer

Jones, J. Appellant contends that no negligence on his part has been shown. With this we cannot agree. The trial court found that appellant “cut the corner” in violation of law and was guilty of negligence in so doing. The finding is sufficiently supported by the evidence. The statute (sub. 1,. sec. 1636 — 49b) forbidding such cutting of corners certainty is designed to prevent accidents between vehicles at street intersections, and it follows that appellant was guilty of negligence per se. Ludke v. Burck, 160 Wis. 440, 152 N. W. 190. The trial court further found that appellant’s negligence was the proximate cause of the collision. Whatever may have been the proximate cause of the accident we are satisfied that appellant’s negligence so contributed to it that he can recover nothing on his counterclaim, and is liable in damages to respondent unless the latter was guilty of contributory negligence. ■ ■ • The trial court made no finding on the issue whether the respondent was guilty of negligence, but did find that his rate of speed was not the proximate cause of his injury. That respondent was guilty of negligence cannot be doubted, since according to his own testimony he was violating sec. 1636 — 49, Stats. This statute undoubtedly aims in part to prevent collisions between vehicles upon the streets, especially at street intersections, and its violation constituted negligence per se. Ludke v. Burck, supra; Brown v. C. & N. W. R. Co. 109 Wis. 384, 85 N. W. 271. It was clearly upon the finding of the civil court that respondent’s rate of speed was not the proximate cause of his injuries that the circuit court affirmed the judgment, for that court construed the civil court’s findings as embracing a finding of respondent’s'negligence. The circuit court concluded that there was evidence to sustain this finding upon proximate cause and that it followed as a matter of course that the judgment must be affirmed. In this conclusion the circuit judge took too restricted a view of his power to review the judgment of the civil court. The findings of that [235] court have the same status upon appeal to the circuit court as findings of the circuit court on appeal to this court. They are not entitled to the same conclusiveness as a verdict of a jury, but will control unless against the clear preponderance of the evidence. Pabst B. Co. v. Milwaukee L. Co. 156 Wis. 615, 620, 146 N. W. 879; Keck v. Michigan Q. S. Co. 158 Wis. 500, 149 N. W. 208. The theory upon which the trial judge made this finding appears to be set forth in the following statement in his opinion: •. “And the court is further of the opinion that from the nature of the accident and where plaintiff struck the automobile of.the defendant, that this particular accident was just as likely to happen had he been going at fifteen miles an hour as though he had gone at twenty-two miles an hour. The evidence shows that the plaintiff struck the defendant’s automobile at the front and just as it had rounded the northeast corner of Hadley street and Fond, du Lac avenue. Had he been going slower, say fifteen miles an hour, the probabilities are that he would have struck the automobile nearer the center, because it is apparent that he could not stop the motorqUe after he had knowledge of defendant’s intention' to cut the corner.” The finding-must be sustained unless it is against the clear preponderance .of -the evidence, but we have read the record as' well as the printed case and are convinced that the finding is against the clear preponderance. Respondent testified that if he'had been going,at a lawful rate of speed he could have stopped his motorcycle by-its brakes within twenty feet.. There are marked discrepancies in his testimony as to his distance from appellant when he saw his danger. When asked, how far appellant was from- him when appellant made the turn-he stated-twenty-to twenty-five feet. If appellant made a sudden and unannounced turn in front of respondent at-such close, quarters the-court’.s finding that the injuries would have-occurred, .whatever respondent’s speed, might be supportable: ■ .-But.-even-then it .seems to us that if respond [236] ent had been traveling at a lawful rate of speed he would-have had a much better chance of avoiding the collision. At least he could have so slackened his speed before the impact that his injuries might have been less severe. It maybe added that if the respondent had been going more slowly the appellant would have had a better opportunity to see him in time to avoid the accident. . However, respondent testified in great detail in connection with his Exhibit 1, a diagram of the place of the accident. He testified that he saw appellant when a block distant,, and kept looking ahead. He indicated the point where he saw appellant headed towards Hadley street, east of the center of Fond du Lac avenue, and well to the left' of the . center of the intersection instead of to the right, where he should have been, tie understood, when he saw appellant at'this point, that the latter was turning into Hadley street and said that he saw that a collision was inevitable. He indicated and described the point where he himself was when he saw this. By comparing distances upon the diagram it appears that this latter point is about fifty-five feet, instead • of twenty to twenty-five feet, from the point where appellant was when the danger was seen, is about thirty feet from the point where -he .testified ..the collision-, occurred, and -about thirty-five -feet from the center of. the intersection itself. -As. . respondent, testified that, he. could stop from a legal, speed;. within .twenty feet, it-appears from his own-testimotiy that., had he been .going, at such..a .speed he would in all .probability have, had ample, time- to ..stop before .the..collision,..at-.least,., time-to so slacken, his speed .that the impact .would.have had - less serious, .results. • . It is true .that in one. part of respondents .testimony-,he-claims -that the collision, was. unavoidable- on. his ..part. ...But..- ■ from another part of-his evidence,, .which is relied, on-to. prove... the negligence of -appellant and. which is, most relied upon.; on that issue, it appears that if respondent had. not violated .. the- law .the■ accident.-probably would, not .have happened.... [237] This portion of the testimony, in which respondent indicated the several positions of the parties upon the diagram, seems to us of controlling weight as compared with his estimate of the distance separating him from appellant when he saw appellant turn in front of him. It follows that respondent was guilty of negligence which contributed to proximately cause his injuries, and that consequently he cannot recover damages from appellant. The case of Maher v. Lochen, 166 Wis. 152, 164 N. W. 847, confidently relied upon by respondent, might be controlling if we could agree on the facts with the trial court. In the view we take of the facts, however, that case and the cases like it are clearly distinguishable. By the Court. — Judgment reversed, and cause remanded to the circuit court with directions to enter, judgment for defendant dismissing the complaint and the counterclaim.