Haggerty v. Rain

The following opinion was filed March 14, 1922: Doerfler, J. The driver of plaintiff’s car, while operating the same south on highway 28 and at the time he approached highway 19, according to his own testimony, looked neither to the right nor the left, but continued to look straight ahead in the direction in which his car was running. Had he maintained a proper lookout as he approached the intersection, it is but fair to assume that he could have detected the approach of defendant’s car in time to avoid the collision, and his admitted failure to maintain such lookout constitutes negligence as a matter of law, under the circumstances of this case. Counsel for the plaintiff requested the court to instruct the jury that the driver of plaintiff’s car, álthough under sixteen years of age, had a legal right to operate the same, he being accompanied by an adult person at the time of the collision. This instruction the court refused to give, and such refusal would have been error if it did not appear from the record that the plaintiff was guilty of negligence as a matter of law. The jury found that the plaintiff was guilty of negligence which proximately contributed to the collision, which practically disposes of plaintiff’s cause of action, and requires no further comment by the court. Defendant testified that as he was turning in onto highway 28 from highway 19, and while going at the rate of [377] between nine and ten miles an hour, he discovered plaintiff’s car and realized that there was danger of a collision; that he then proceeded to pass south of the center of the intersection of the two highways and swerved his car up towards the south end of the culvert extending across the center of the farm road, and that after he had made the turn the collision took place. We have carefully examined the evidence, and we are satisfied that it conclusively appears therefrom that the collision took place to the right of the center of the concrete road and a short distance south of the north line of highway 19 extended across highway 28. The position of the Dodge car immediately after the accident, as testified to by numerous witnesses, the indentation made by the axle on the cement, and the mark left by the skidding when the driver violently applied the brakes, create a physical situation which is decisive not only as to the place of collision, but as to the physical impossibility of the accident having happened at the place designated by the defendant and his witnesses. Under these circumstances we must hold that the defendant failed to comply with sec. 1636— 49& of the Statutes in not passing to the right of the intersection of the two highways in turning to the left, and that such failure on defendant’s part was a proximate cause of the collision. A number of instructions were requested by the plaintiff applicable to defendant’s alleged negligence, which under the circumstances it is unnecessary for us to consider in view of our holding as above stated. The judgment of the lower court is therefore reversed, with instructions to dismiss defendant’s counterclaim and plaintiff’s complaint, with costs. By the Court. — It is so ordered. A motion for a rehearing was denied, without costs, on June 6, 1922.