Isgro v. Plankinton Packing Co.

The following opinion was filed February 7, 1922: Doerfler, J. 1. Was the defendant guilty of negligence which proximately caused the injury? In considering this question we must determine whether there was any credible evidence in the case supporting the finding of the jury on that subject. If there was such credible evidence which to a reasonable mind can support any inference in favor of a party, the question is for the jury. Smith v. Reed, 141 Wis. 483, 486, 124 N. W. 489. It has been held in Behling v. Wis. B. & I. Co. 158 Wis. 584, 591, 149 N. W. 484, that: “Failure in any case, and especially where to disturb the verdict rests in sound discretion, leaves, in general, .very little opportunity for relief because of the weight accorded to a trial court’s decision, and the rule that evidence, to be entirely incredible, must be contrary to conceded facts, or matter of common knowledge, or to all reasonable probabili — 512 — ties, that being, generally, restricted to cases where the evidence is inherently unbelievable because physically impossible, or for some other cause.” With the law of this state as above set forth, let us view the evidence in regard to defendant’s alleged negligence. As defendant’s truck approached the railway crossing it at no time went beyond a speed of twelve miles per hour. This was a physical fact established in the evidence, against which the testimony of witnesses is unavailable. The truck,- therefore, was not going to exceed twelve miles an hour when plaintiff first saw it as he picked up his barrow at the heap of crashed stone, and it did not exceed that limit when the plaintiff arrived just east of the easterly railroad track. The driver testified that he did not see the plaintiff until he was within fifty or sixty feet from him, and that plaintiff was wheeling his barrow on the planking towards the south, and that instead of blowing a horn or giving some other signal he hollered to the plaintiff to get out of his way. On the other hand, plaintiff testified that he was wheeling towards the. west and had his back towards the truck and that no signal or warning of the approach of the truck had been given. Here we find a sharp conflict in the evidence on the two sides of the case, and while the evidence of the driver and his companion is not improbable, nevertheless, in view of the location whence the plaintiff came, and his destination, and the surrounding facts and circumstances, we are inclined to believe that plaintiff’s version is more probable than that claimed by the driver; at any rate the fact was a proper one to be submitted to and determined by the jury. Plaintiff claimed that he first saw the truck a distance of about 250 feet towards the east, and on the occasion when he looked the second time the truck was about eighty or more feet distant from him. The driver testified that when he first saw the plaintiff and his barrow he was about fifty feet distant from them; thus presenting a situation from — 513 — which the jury .could readily infer that the driver was not having a proper lookout ahead of him, for there is nothing in the evidence to show that the driver’s view could in any way have been obstructed. Before the truck arrived at the narrow plank crossing, ample opportunity was afforded the driver to ascertain the width of the passageway and the accompanying danger of more than one vehicle crossing the same at the same time. According to the driver’s own testimony, the truck was so constructed and was under such control that it could have been stopped at any time within a distance of two feet. There being ample credible evidence to sustain the plaintiff’s version that he was traveling west on the narrow planking at the time he was struck by the front left fender of the truck, in view of all the facts and circumstances in the case as detailed, the fact was properly before the jury as to whether plaintiff’s version in that regard was correct or not. The jury evidently determined that it was correct. Plaintiff testified that he was struck by the left front fender on or about the elbow of his right arm while he was wheeling his barrow. This claim of the plaintiff is not only credible but highly probable, for it appears from the evidence that the front fender would be at or about the level of the location of plaintiff’s right elbow while he was wheeling the barrow. And his testimony is also credible and highly probable that the force thus applied turned him about, so that when the rear left wheel of the truck arrived opposite him his position had been so changed that such rear wheel came in contact with the lower part of his right foot, causing the injuries complained of and precipitating him to the road. While the driver and his companion both testified positively that as the rear left wheel of the truck passed the plaintiff they both looked backward and that no portion of the truck touched the plaintiff, nevertheless, in view of the injury which resulted, it appears conclusive to our minds that such injury was inflicted by the rear left — 514 — wheel of the truck coming in contact with plaintiff’s lower right limb. If evidence were needed to corroborate the infliction of.the injury in that manner, the testimony of the driver and his companion amply furnishes the same, for both testified that when the rear left wheel came to a point opposite where plaintiff was standing they saw him falling over like a statue. This can readily be explained by the fact that the wheel came in contact with the lower portion of plaintiff’s right lower limb, which prevented him from falling in the ordinary manner and which explains the statue-like falling as contended for by the driver and his companion. We thus have the situation presented of a three-ton truck, laden down by a ton or more of weight, under full and absolute control of the driver, approaching the plaintiff from the rear, while he was laboring under the burden resting on him while wheeling the heavy barrow of crushed stone, in an attempt to clear the narrow passageway in time so as to avoid a collision with the truck. Can we say, under these circumstances, that the situation presented did not constitute a proper question for the jury on the subject of the negligence of the driver of the truck? The degree of care which it is necessary for a driver of an auto vehicle under such circumstances to exercise is fixed to a large extent by the necessity of conserving human fife and limb. It was fully within the power of the driver to size up the situation, either before he entered upon the passageway or before he attempted to cross the westerly railway tracks, by so regulating the operation of his car or by stopping it, as to prevent the injury. Such a slight degree of thoughtfulness and patience would have avoided not only much human suffering but would have saved whole an humble but productive member of so'ciety. 2. Was the plaintiff guilty of contributory negligence as a matter of law ? At the time of the injury the plaintiff was engaged as a laborer in performing construction work in the relaying of — 515 — a pavement between the street-car tracks and the railway tracks. He occupied a different position with respect to the degree of care required of him than an ordinary traveler upon the highway. In Dinan v. Chicago & M. E. R. Co. 164 Wis. 295, 159 N. W. 944, it was held: “A man who is engaged in work upon the highway cannot, if he performs his duty, spend a large part of his time in looking for the approach of street cars or other vehicles. In a busy street he would accomplish little if he did so. Of course he cannot let his thoughts go wool-gathering and expect all users of the highway to give place to him; he must exercise some vigilance; he must keep that lookout for vehicles and cars which an ordinarily careful man similarly situated would keep; a man who is compelled to be in the street and to be giving attention to his work. Such care must manifestly be a lesser degree than the care required of a person who is on the highway for the purpose of travel alone and may come and go at will. This court has affirmed the principle in Turtenwald v. Wis. Lakes I. & C. Co. 121 Wis. 65, 98 N. W. 948, and other courts have adopted the same rule. Graves v. Portland R., L. & P. Co. 66 Oreg. 232, 134 Pac. 1; Lewis v. Binghamton R. Co. 35 App. Div. 12, 54 N. Y. Supp. 452. See 2 Thompson, Comm. on Neg. § 1463.” So that when plaintiff arrived at the east railway track and saw the defendant’s truck eighty or more feet distant, he had not only a duty to perform towards his employer but a duty to exercise a degree of vigilance with respect to the oncoming truck. He made his observations, and he saw before him a narrow passageway, about ten or more feet in width, which both he and the truck were obliged to pass. Pie evidently calculated that he would be able to discharge both obligations safely and thus be enabled to clear the passageway in time to avoid a collision. The degree of care required in the instant case of the plaintiff is the degree which an ordinarily careful laborer, similarly occupied and situated, would exercise under the same or similar'circumstances. It is sometimes difficult for a man of much higher — 516 — intelligence to act correctly under similar circumstances. The plaintiff had a right to be upon the highway and the passageway; nay, he was necessarily there in the performance and discharge of his duty. The driver of the truck could readily observe this. If in discharging his duty and exercising his judgment the plaintiff fell slightly short in the estimate which he made with respect to clearing this passageway in time, it cannot be said as a matter, of law that he was guilty of the exercise of a want of ordinary care under the circumstances.. The learned counsel for the defendant, both in the oral argument and in his brief, accepting the version of the defendant’s witness that when the plaintiff arrived at the west railway track going south over the passageway he set down his barrow, standing between the handles, and was looking east, and that the truck had safely passed him with the front wheels, evolved the theory (and a theory it was, pure and simple) that the plaintiff concluded that the truck had passed and proceeded to lift the barrow, and in endeavoring to. proceed toward the south extended his right foot backward at the time when the left rear wheel of the truck was about to pass, and thereby came in contact with such wheel, as the result whereof the injury was produced. Counsel also contended that that was the only plausible theory which explained the accident. In reply, it may be said that there is no evidence whatsoever to substantiate such theory. It is mere speculation and conjecture. On the other hand, there is credible evidence to support plaintiff’s version, and surely the jury was justified, under the circumstances, in accepting the same rather than resorting to a theory-which had no foundation in fact. Of course it cannot be logically claimed that the wheel passed over the foot, for if such had been the case the foot would have been crushed and an injury produced entirely different from that shown in the instant case. -The jury was justified in either believing and finding that the injury — 517 — was occasioned by the rim of the rear left wheel of the truck coming in contact with plaintiff’s lower right limb before he fell or while he was lying prone on the ground, as testified to by defendant’s witnesses, with his head lying towards the west and his feet towards the east. We therefore conclude that there was ample credible evidence to be submitted to the jury upon plaintiff’s theory of the happening of the injury, and that, the jury having sustained plaintiff’s contention, the judgment of the lower court cannot be disturbed. Smith v. Reed, 141 Wis. 483, 486, 124 N. W. 489; Collier v. Salem, 146 Wis. 106, 108, 130 N. W. 877; Barlow v. Foster, 149 Wis. 613, 621, 136 N. W. 822; Behling v. Wis. B. & I. Co. 158 Wis. 584, 149 N. W. 484. By the Court. — Judgment affirmed. Rosenberry and Owen, JJ., dissent. A motion for a rehearing was denied, with $25 costs, on April 11, 1922.