Vogel v. Otto

Doerfler, J. The crossing, prior to the accident, had been substantially in the same condition for a period of upwards of one year, so that, assuming that the crossing was not reasonably safe, it must be presumed that the village had notice thereof. Plaintiff’s counsel contend that the village, in the exercise of ordinary care, should have either maintained a barrier or warning near the northwest corner of the crossing, and that in view of the condition of the crossing and the approach thereto from the north it must be held, under the evidence in the case, that the village was negligent as a matter of law. In Schuenemann v. Director General of Railroads, 177 Wis. 218, 187 N. W. 983, it was held that it was not necessary for the railroad company h> maintain a planked crossing any wider than the portion of the highway used by the public for the purposes of travel. The jury had a view of the premises, and it is undisputed that the condition of the crossing at that time was substantially as it was at the time of the accident. The traveled portion of the highway leading onto the crossing from the north was oiled, indicating to the traveling public the proper [5] and usual place for travel purposes. The space immediately to the east, of the brick platform was not oiled. There were electric arc lights in the vicinity of the crossing, but the effectiveness of the lighting at the crossing, from these lights, was not clearly established by the evidence. The crossing could have been safely reached by the operator of the machine if he had made a proper turn after proceeding beyond the east end of the brick platform. It would appear to us, therefore, that whether or not the village was negligent in the respects complained of raised a proper jury issue. It is further claimed by plaintiff’s counsel that the verdict is perverse, in that the jury assessed the damages in the sum of $1,000, whereas this amount was not sufficient to compensate for the loss of wages and the actual medical and other expenses, to say nothing of the pain and suffering, covering a long period of time, resulting from the injury; and that such perverseness is also expressly made manifest by the answer of the jury to the question involving plaintiff’s alleged contributory negligence. Had all of the questions involving negligence been answered in plaintiff’s favor, we would not hesitate to pronounce the verdict perverse on the subject of damages. It has been held in Lines v. Milwaukee, 147 Wis. 546, 133 N. W. 592, that: “Where the answer to one question in a special verdict indicates that the jury were actuated by passion and prejudice in returning such answer, it is the duty .of the court to set the verdict aside, unless satisfied that the passion and prejudice affected only that particular question.” See, also, McNamara v. McNamara, 108 Wis. 613, 84 N. W. 901. It might also properly be said that the verdict was perverse on the subject of contributory negligence. We have given this charge of perverseness very close attention, and from all the facts and circumstances in the case are of the opinion that the same did not manifest itself in the jury’s [6] answer to the question involving negligence on the part of the defendant village, and that the perverseness of the verdict in the respects above referred to did not affect that portion of the verdict involving the alleged negligence of the defendant village. Plaintiff, at the time the defendant Otto started eastward from the depot with the intention of driving over the crossing, was the sole occupant of the rear seat of the automobile. She paid no. attention to the driving of the operator of the car or to the highway, and was engrossed in'buttoning up her coat so as to shield her from the cold. She had driven over this crossing from the south and knew of, its existence. It appears also from the evidence that she had frequently been a passenger in Otto’s car prior to the accident, and felt reasonable confidence in his ability to properly operate the machine. The turning onto the crossing in the manner in which it was effected was rather sudden and occupied but a very short space of time. 'It was impossible for her to know exactly the nature of the turn he intended to make. At any rate it does not. appear that she had any reason to believe that he would make this dangerous turn in the manner in which it was accomplished. She had no control of the automobile, and under the circumstances we are satisfied that it should be held as a matter of law that she was not guilty of contributory negligence. Plaintiff also complains of the judgment of nonsuit in favor of the defendant Otto. Plaintiff was a gratuitous guest in the automobile 'of her brother-in-law, and in the operation of his car he owed her the duty of exercising ordinary care, which is that degree of care which an ordinary, prudent person would exercise under like or similar circumstances. See Mitchell v. Raymond, 181 Wis. 591, 195 N. W. 855. Otto testified that he had been over this identical crossing during the same summer on at least four different occasions; that immediately prior to the accident [7] he turned onto this crossing at an angle, knowing that his lights were shed in a direction so as not to disclose the exposed rails, and without in. any manner decreasing the speed of his automobile. It would therefore appear to us that under such circumstances, in view of the rule of ordinary care now. adopted by this court, thé question of the defendant Otto’s negligence raised a proper question for the jury, and, such being the case, the court erred in granting the motion for nonsuit. At the time of the trial in the lower court the question involved in this case as to the degree of care which an owner and driver of an automobile must exercise with respect to' an invited guest was still an open one in this state, and therefore it is likely that the learned circuit judge applied a different rule when he granted the nonsuit, for which he is in nowise to be criticised. From the foregoing we conclude that the judgment of the lower court dismissing the complaint as to the defendant village must be affirmed, and that the judgment of non-suit as to the defendant Otto must be reversed! By the Court. — The judgment in favor of the defendant village is affirmed, with costs; and the judgment of non-suit in favor of the defendant Otto is reversed, with costs; and the cause is remanded with directions for further proceedings in accordance with this opinion.