Blazic v. Franzwa

JoNES, J. The following were allegations of negligence charged in the complaint: “That due to the operation of said automobile at a great and unlawful rate of speed, without keeping a proper lookout, without having the same equipped with proper stopping — 262 — appliances, and without giving a horn or other warning of his approach, and in violation of the rules of the road, caused said automobile to run into and collide with the plaintiff, throwing her to the pavement, and seriously injuring her. ...” It is an unusual feature of this case that there is very little conflict in the testimony as to the manner in which the accident occurred. None of plaintiff’s witnesses testified as to the speed of the car. One of defendant’s witnesses, a policeman, testified that the car was not going very fast. Another policeman said it was going “about eight or nine miles at the very most.” Defendant testified: “I was going about eight miles an hour as I was crossing Vliet street coming to the south sidewalk line of Vliet street, and positively not to exceed ten miles an hour.” Another witness who was in the car with defendant stated that the speed did not exceed ten miles per hour. The only testimony on which a finding could possibly be based that there was excessive speed was that which related to the distance traveled by the car after the collision. On this subject the only testimony on behalf of plaintiff was her own, and she said that the distance was about ten feet. One of the policemen said: “The machine did not run very far after it struck the girl because the rear end of it was only about four or five feet from her body when she got up, and the outside of the machine from the curb line might have been seven or eight feet, because Twelfth street is not very wide there.” The defendant estimated the distance at ten feet. The witness who was riding with defendant leaped out when the plaintiff appeared in front of the car and went to her assistance at the' same time as one of the policemen. This witness did not state the distance traveled after the accident. One of the policemen estimated the distance traveled after the collision at from ten to fifteen feet. — 263 — It is not strange that there should be some uncertainty as to the exact distance. The night was dark; the pavement was wet and slippery; no measurement was made, and the defendant after the collision guided the car to the curb, where he stopped. Testimony as to the physical facts’ occurring after a collision, in connection with direct testimony as to the rate of speed, may be quite significant. But it is not easy to determine the exact distance within which one using ordinary care should stop a car in the nighttime on a slippery street in the excitement and confusion of a collision. In this case there was the undisputed testimony of four witnesses, three of whom were disinterested, that at the time of the accident the car was being driven at a very moderate speed. In the face of this positive testimony we do not think that the jury were justified in concluding that the speed was excessive from the mere physical facts relied on. Such a conclusion would rest too much on conjecture and guesswork. Another ground of negligence relied on was that defendant kept no proper lookout. Undoubtedly it was his duty to look ahead and to use ordinary care to avoid accident. " He had used the precaution to open the wind-shield so that notwithstanding the rain there might be an unobstructed view. There is.no testimony on behalf of plaintiff that there was not a proper lookout unless it be the fact of the collision itself. Defendant and the witness with him swore that they were watching the street ahead and did not see the plaintiff until just as she was approaching the path of the left-hand light of' the machine. According to all the testimony the plaintiff left her companions behind and hurried very rapidly across the street. Although her sight was somewhat defective she said she could see, as the weather conditions were that day, “not quite a block.” She did not see the approaching car with its headlights burning. In the night this was obviously an — 264 — object much more easily seen than the plaintiff hurrying across the street. Counsel for plaintiff argue that one of the policemen on the sidewalk saw the plaintiff and hence she ought to have been seen by defendant. One of the policemen did not see her until she was struck, although he saw the auto approaching. The policeman whose testimony is relied on said: “As Officer Ring and I were walking south, on the west side of Twelfth street, crossing Vliet street, this machine passed us, going south at about eight or nine miles an hour at the very most, when this little girl darted off the east curb and ran directly in front of the machine which passed over her, — none of the wheels striking her. She got up and staggered into the arms of Officer Ring.” If the plaintiff saw the car at all it was evidently the instant before the collision, and it was then that she was first seen by the defendant and the policeman. As defendant came to the intersection he looked for cars which might be coming from the left and the right, as well as for pedestrians. He was going at a low rate of speed. On the undisputed testimony he applied the brakes on the instant that he realized there was danger. He had violated no ordinance or statute, as appeared in most of the cases cited by respondent’s counsel. He had not sounded the horn, it is true, but for the reason that he had not seen the plaintiff, and as has frequently been held by this court there is no statute requiring it. Bearing on the claim that it was negligence to fail to see plaintiff, the following extract from a late decision by Mr. Justice Owe^n is quite pertinent: “It will be observed that the plaintiff had as good an opportunity to discover the defendant’s car approaching from the west as the defendant had to discover the presence of the plaintiff upon the crosswalk. According to plaintiff’s testimony, no automobile passed in front of her to obstruct her view to the west, from which direction defendant’s car was approaching. She testified that her sight — 265 — was good, and it is a physical certainty^ that if she had but glanced in the direction from which she was required to anticipate approaching traffic, after having passed the center of the street, she would have observed defendant’s car in time to have avoided the accident. Pedestrians cannot heedlessly cross busy city streets where automobiles and other traffic pass to and fro, without taking the least precaution to discover and avoid approaching vehicles. To grant such immunity to pedestrians is inconsistent with the existence of equal rights and privileges and 'mutual duties and responsibilities which under the law belong and attach to contemporary users of the streets.” Brickell v. Trecker, 176 Wis. 557, 559, 186 N. W. 593, 594. It is earnestly contended by counsel for plaintiff that questions of negligence arising out of automobile accidents are peculiarly for the jury, and he cites Shortle v. Sheill, 172 Wis. 53, 178 N. W. 304; Groeschner v. John Gund B. Co. 173 Wis. 366, 181 N. W. 212; and Cunnien v. Superior I. W. Co. 175 Wis. 172, 184 N. W. 767. This is true, but for the reason that in this class of cases there is usually -a close conflict in the evidence and it is the province of the jury to pass upon the credibility of the witnesses. The use of the automobile has brought into the courts a flood of litigation. But excepting statutory regulations this use has not changed the well-established rules governing the Jaw of negligence. It has only made it necessary to apply those rules to new conditions. In these cases as in others, if negligence is relied on it should appear that there has been an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or that something has been done which a prudent and reasonable man would not do.. In these cases as in other cases of negligence it is necessary that the charge should be established by the preponderance of the evidence, and the burden of proof rests on him who asserts the negligence. Applying these rules, we consider that there was not credible evidence to — 266 — sustain the finding of the jury that the defendant was guilty o'f negligence. Brickell v. Trecker, 176 Wis. 557, 186 N. W. 593; Koperski v. Hoeft, post, p. 281, 191 N. W. 571. It was contended by counsel for defendant that the trial court should have held as a matter of law that there was contributory negligence. In view of the conclusion we have reached it is" unnecessary to decide this question. It does not seem probable that any new evidence would be produced on a second trial, hence the complaint should be dismissed. By the Court. — The judgment of the circuit court is reversed, with costs, and the cause is remanded with directions to dismiss the complaint.