McCaffery v. Automobile Liability Co.

Doerfler, J. Schissler being a common carrier, and the plaintiff being a passenger in his car, the law applicable in cases of that kind with respect to common carriers, as laid down by this court, governs the degree of care which he was required to exercise. It has been held that “The duty imposed on common- carriers to provide for the safety of passengers is to exercise the highest degree of care reasonably to be expected from human vigilance and foresight in view of the character of the conveyance adopted and consistent with the practical operation of the business.” Dibbert v. Metropolitan Inv.. Co. 158 Wis. 69, 73, 147 N. W. 3; Oberndorfer v. Pabst, 100 Wis. 505, 513, 76 N. W. 338; Ferguson v. Truax, 132 Wis. 478, 490, 110 N. W. 395, 111 N.W. 657, 112 N. W. 513; Wanzer v. Chippewa Valley E. R. Co. 108 Wis. 319, 84 N. W. 423. In law, under the situation presented in this case, Schiss-leFs car had the right of way over the automobile coming from the west, and the latter had the right of way over the truck coming from the north. As Schissler’s 'car approached and proceeded to cross the -south crossing of [233] Lloyd street, he had the right to assume that the automobile coming from the west would comply with the rules of the road as provided for by the statute and yield to him the right of way. Zimmermann v. Mednikoff, 165 Wis. 333, 162 N. W. 349; Glatz v. Kroeger Bros. Co. 168 Wis. 635, 170 N. W. 934. In violation of the rules of the road with respect to .the rights of the defendant Schissler, the automobile coming from the west at an excessive rate of speed proceeded to pass in front of the truck coming from the north, and the defendant Schissler, realizing the emergency, took, what he considered the proper course to avoid a collision by first swerving his machine towards the east, then proceeding towards the north, and then towards the northeast, and he had arrived with his machine at about the northeast corner of the intersection of the two streets named when the automobile coming from the west struck- the rear left' wheel of his car, causing the same to be upset, and resulting in the injuries aforesaid. It is true, as is claimed by plaintiff’s counsel, that it was held by this court in Glatz v. Kroeger Bros. Co. 168 Wis. 635, 170 N. W. 934, Mr. Chief Justice Winslow rendering the opinion, that ’ . “The possession of this right [of way] does not of course justify the possessor in plunging ahead regardless of consequences nor in' failure to exercise ordinary care to avoid injury to others, but the fact is an important one to be considered in deciding the question of negligence.” In determining in this case whether or not the defendant Schissler was free from negligence as a matter of law, we must place ourselves as nearly as possible in the situation he was in, under the circumstances as detailed in the evidence. Having the right of way, and being justified in assuming that such right would be yielded to him, he proceeded on his northerly course after crossing the south crosswalk of Lloyd street, then, as an extra precaution, he first [234] swerved his machine towards the east, intending thereby to avoid any possibility of a collision, and thereupon, realizing that the automobile coming from the west was suddenly turned toward the northeast corner of the intersection, directly towards Schissler*s car, he turned his machine in a northeasterly direction, so that it was headed for the northeast corner of the intersection, all of which was done not only in an effort to protect the plaintiff as a passenger, but to avoid injury to himself and his car. Surely, after Schissler had passed the south crossing of Lloyd street, he had no reason to expect that the automobile coming from the west would suddenly turn into and collide with his machine after he had arrived at said northeast corner. While the operator of a jitney, under the law pertaining to common carriers, is obligated to exercise the high degree of care above referred to, he is not charged with the necessity of either possessing superhuman powers of anticipation or of exercising such powers in a threatened emergency. The degree of care required by the doctrine laid down in the case of Dibbert v. Metropolitan Inv. Co. 158 Wis. 69, 73, 147 N. W. 3, must be such as is consistent with the practical operation of the jitney business. The contention is also made that the defendant, in crossing the intersection, was driving at an illegal and excessive rate of speed. It is our view that the speed in this instance had a tendency rather to avert the injury than to cause it. We are convinced that the claim made by plaintiff’s counsel herein, that Schissler should have either stopped his car before crossing the intersection or have turned his car to the east onto Lloyd street, under the evidence in this case, would be charging him with the exercise of such degree of care as would be inconsistent with the practical operation of his business, and we' therefore hold that the defendant Schissler was free from negligence which proximately contributed to the injury, as a matter of law. By the Court. — Judgment affirmed.