Wappler v. Schenck

Jones, J. From the statement of facts it is evident that there were sharp conflicts in the testimony on various phases of the case. There was the conflict in evidence so common in collision cases as to the rate of -speed of both cars. The testimony that the Heintz car was going at the rate of twenty-five to thirty miles per hour may have been far from the truth, but it cannot be said as a matter of law there is no credible evidence to that effect. Some testimony located the place of .the accident about the middle of Maryland avenue; other testimony placed it near the east curb line of the street and near the northeast corner of the intersection. In the oral argument and briefs counsel for plaintiff have argued that defendant paid no attention to ascertaining whether a car was approaching from the right. On the other hand, defendant’s counsel claim that plaintiff and Heintz, with whom he was riding, were negligent in failing to see defendant’s car coming from the left. Under the familiar rule, in order to sustain a verdict directed for — 638 — plaintiff it is necessary to look at the facts in the most favorable light for the defendant. If the testimony produced by defendant is to be believed and the most favorable construction is to be given it, the jury might have determined that he had reasonable ground to believe that he could safely pass without any collision. And in this connection it would have been proper for them to consider that he might have assumed when he first saw it that the other, car was not going faster than the legal rate of speed. It would also have been proper for them to weigh the testimony to the effect that in fact it was being driven at the rate of twenty-five to thirty miles per hour. On the claim that defendant was negligent in not sooner applying the brakes the jury might have believed that he applied them as soon as he saw the danger and realized the rate of speed of the Heintz car. The trial judge was undoubtedly strongly impressed by the belief that defendant was guilty of negligence. He also desired that the statute quoted in the statement of facts should be observed, and with that we are in’ entire accord. And yet we consider that under the facts of this case the question of negligence was for the jury under proper instructions. In a recent case in this court, where it was contended that the plaintiff was guilty of contributory negligence as a matter of law, and where defendant’s cab had the right of way at the intersection under the statute, in the opinion by Mr. Justice Owen it was said: “It must be regarded as a verity for present purposes that the plaintiff saw defendant’s cab west of the street-car track on Second street when he was at a point ten or fifteen feet north of the north curb line on Wells street. By reference to the plat introduced in evidence, it appears that the cab was then more than 150 feet from the place of collision. Plaintiff was approximately sixty feet from the place of collision. He estimated that he had abundant time to cross the intersection ahead of the cab, driving at from twelve to fifteen miles an hour. It is apparent that, if the — 639 — cab was approaching at anything like a lawful rate of speed, plaintiff had an abundance of time to cross the intersection ahead of the cab. In view, of the fact that when plaintiff made his observation he was justified in the belief that he had ample time to cross,ahead of the cab, it is impossible for us to say that he was guilty of contributory negligence as a matter of law in his failure to malee later observations. Although he knew the cab was coming at a high rate of speed, he also knew that the cab was from two and one-half to three times as far from their point of intersection as he was; that the view of the cab driver was free and unobstructed; and that it was entirely possible for the cab driver to slow down before reaching the intersection. Under these circumstances, it was plainly a jury question as to whether he was negligent in his failure to give further attention to the approaching cab.” Werner v. Yellow Cab Co. 177 Wis. 592, 188 N. W. 77. In the New York court of appeals a similar question was lately considered and a right-of-way statute not unlike our own was construed. In the opinion by Cardozo, J., the court said: ^ “We think the case was for the jury. With the plaintiff’s car forty feet away and the defendant’s eighty, there appeared to be sufficient clearance. So, at least, a reasonable man might not unreasonably believe. Sudden acceleration of the defendant’s speed was not to be foreseen. Even with added speed, the defendant, if he had looked, could have avoided collision by a trifling bend to the left upon an unobstructed street. The plaintiff in shaping his own course might act on the assumption that common skill and prudence would shape the defendant’s also. He was not required to foreseethe defendant’s blind and uncompromising adherence to an undeviating line. The supreme rule of the road is the rule of mutual forbearance. Mark v. Fritsch, 195 N. Y. 282, 283, 284, 88 N. E. 380. “The defendant, it is said, had the right of way under the statute. 'Every driver of a vehicle approaching the intersection of a street or public road shall grant the right of way at such intersection to any vehicle approaching from his right.’ General Highway Traffic Law, sec. 12, sub. 4; — 640 — Consol. Laws, ch. 70. The privilege thus conferred is not inflexible and absolute. A right of way, like a burden of proof, will establish precedence when rights might otherwise be balanced. It helps us little when without it the balance would be unequal. A right of way might turn the scales if, when the plaintiff started to cross, the cars had been equidistant, or nearly so, from the point of the collision, due regard being had also for the speed of their approach. Even with the distances what they were, it was an element which the triers of the facts were to consider in their estimate of conduct. That, in the circumstances of this case, is, we think, the extent of its significance. The plaintiff was not to wait until there was no other car in sight. Such a rule would be unworkable in crowded cities. He was to wait until it was reasonably safe to start. Whether he started when there was danger was a question for the jury.” Ward v. Clark, 232 N. Y. 195, 198, 133 N. E. 443. A question somewhat analogous to that here involved has arisen several times in' this court. In Tesch v. Milwaukee E. R. & L. Co. 108 Wis. 593, at p. 608 (84 N. W. 823) the court said: “A person desiring to cross a streeLcar track in advance of an approaching car has the right of way if, calculating reasonably from the standpoint of a person of ordinary care and intelligence so circumstanced, he has sufficient time, proceeding reasonably, to clear the track without interfering with the movement of the car to and past the point of crossing, assuming that it is moving at a reasonable and lawful rate of speed. If a person, exercising his judgment as indicated, attempts to cross the track, and it turns out that he has miscalculated, he cannot be held guilty of a breach of duty to exercise ordinary care. If in the circumstances stated, other than the speed of the car, the car is approaching at an unlawful rate of speed, and it is observable by the person about to cross the track, by the exercise of ordinary care, he must take that into consideration in determining whether there is time to safely clear the track, the duty to exercise ordinary care for his own protection not being excused by the fault of anybody else.” — 641 — Speakes L. & C. Co. v. Duluth St. R. Co. 172 Wis. 475, 179 N. W. 596; Dahinden v. Milwaukee E. R. & L. Co. 169 Wis. 1, 171 N. W. 669; Grimm v. Milwaukee E. R. & L. Co. 138 Wis. 44, 119 N. W. 833. In these cases it was held that the question of negligence was for the jury. Another claim made by appellant’s counsel is that the question of contributory negligence on the part of the plaintiff should also have been submitted to the jury. He saw the defendant’s car 135 to 140 feet away, approaching, as he testified, at a high rate of speed, and gave no warning of danger. While he was not bound to use the same care as the driver, he was bound to use the same care for his own safety that a reasonably careful person would use under similar circumstances. In a recent case in this court it was held that the failure of a gratuitous passenger to admonish the driver was, under the circumstances, contributory negligence as a matter of law. Howe v. Corey, 172 Wis. 537, 179 N. W. 791. It could not properly be so held in the present case, but we do' consider that the question was for the jury. It is argued by counsel for respondent that the verdict was properly directed on the ground that defendant failed to reduce his speed to such a rate as would tend to avoid danger of accident, under the statute above quoted. Much that has already been said as to the testimony concerning the relative speed of the two cars and the estimate made by defendant that he could safely pass also bears on this question. The testimony of defendant tends to- show that he did somewhat reduce the speed as soon as he apprehended danger. Whether he waited too long, before applying the brakes, and whether he failed to use ordinary care in operating them, were questions for the jury. It is only when proof is so clear and decisive, and the facts and circumstances are unambiguous and there is no room for fair and honest difference of opinion, that the court may take the case from the jury or pronounce upon — 642 — the question of negligence as a matter of law. This rule is so familiar and has been so often declared by this court that it is unnecessary to cite the authorities. It is our conclusion that the case should have been submitted to the jury. A large amount of testimony was giVen relating to damages and numerous objections were made to the admission of testimony which it becomes unnecessary to consider. By the Court. — Judgment reversed, and cause remanded for a new trial. ■