Koperski v. Hoeft

Rosenberry, J.' There were no witnesses to the accident except the plaintiff and the defendant. All the evidence tending to show negligence on the part of defendant is the testimony of the plaintiff, which is as follows: “When I got to Fond du Lac avenue I waited at the curb for my chance to cross. There was a machine about 100 feet to my left. I let that machine go by. Another machine turned in on Fond du Lac from Walnut so that gave me plenty of time to cross the street. .It turned into Walnut from my left'. It was' over a half block away [283] which gave me a chance to cross, and when I got as far as the first rail I looked to my right, and when I looked to my left I was blinded by the lights and I fell to the west. No signal of any kind was given.” We fail to find in this evidence any fact from which an inference of negligence on the part of' the defendant may be drawn. He was in the street at a place where he had a right to be, with the lights upon his car lighted, his brakes in working condition, traveling at a very low rate of speed, having just stopped his car a few feet back when he is confronted with a man in front of his car. The plaintiff says he was struck by the car. The defendant says that plaintiff fell. Assuming, as was found by the jury, that the plaintiff was struck, we find no evidence of the failure of the defendant to do or perform any duty which he was required by law to do' or perform. He violated no ordinance. He violated no rule of the road, and according to the undisputed testimony did everything that a man driving an automobile under the circumstances could do. Upon the happening of the accident the car was stopped almost instantly. The mere fact that a pedestrian is injured by an automobile does not prove that the driver of the automobile is guilty of negligence. The pedestrian and the driver of the vehicle have equal right in the streets, their relations are governed and their relative rights established by law and custom. Certainly before the driver can be made liable in damages it must be shown that he has violated some duty. The jury found that the defendant did not keep a proper lookout. We find ño evidence to sustain such a finding. The only possible support, in the evidence for this finding is the fact that the plaintiff was struck. The evidence on the part of the defendant is.that he was keeping a careful lookout. He had just crossed the line of travel, going southeasterly on Fond du Lac avenue; he was entering the line of travel on the street moving northwesterly; he was [284] also required to give way to vehicles, if any, approaching from his right coming south on Thirteenth street. If the plaintiff was not seen before he was in front of the automobile, it does not prove that the defendant was not keeping a proper lookout. To so hold is to hold that á driver must look constantly in every direction at one and the same time — a manifest impossibility. Upon any theory of the case the plaintiff had appeared in the zone of danger a mere instant before he was struck. The situation of the plaintiff was not that of one standing in the street who was struck by an automobile. It appears from the testimony of the plaintiff himself that he moved into the zone of danger from a point of safety, and the fact that the defendant, the driver of the automobile, did not see him at that particular instant does not,charge the driver with negligence under all the facts and circumstances. By the Court. — Judgment reversed, and-cause remanded with directions to dismiss the complaint upon the merits.