Bowen v. Town of Osceola

Doerfler, J. We will first treat the question of the negligence of the defendant town. For years a large number of automobiles had been operated over this highway by persons visiting in that locality, by the urban population living in the vicinity thereof, and by tourists traveling to and from the summer resorts located upon inland lakes in the proximity of the highway. All of these facts, together with the standard of road construction and the topography of the locality, must be taken into consideration in deter — 16 — mining whether a given condition renders a highway defective. Branegan v. Verona, 170 Wis. 137, 174 N. W. 468. Under such authority also, under all th'e facts and circumstances as shown in the evidence, the question of whether or not the town was negligent at the time and place in question raises an issue for the jury to determine. The roadway itself, at the place of the crossing, was unusually narrow. It passed over a ravine, and on each side of the roadway there was a steep precipitation of between twenty-five and thirty feet. The condition of the barrier, and the space between the edge of the road and the posts, the manner in which the posts were set on the side of the bank, and the condition of the posts and guards, created a rather dangerous situation, even though we leave out of consideration the unsupported and unreinforced edge of the highway itself. We hold that such a situation fully warranted the court in submitting the question of the defendant town’s negligence to the jury; and the jury having found against the town, such finding must be sustained. It is further argued that the plaintiff failed to exercise ordinary care which proximately contributed to the injury. Plaintiff was a passenger in the car operated by the defendant Slattery. Pie did not operate the car or participate in its operation, nor did he give any directions. Just before entering upon the crossing his attention was directed to Slattery’s efforts to change the gears. True, both Slattery and the plaintiff were familiar with the crossing, having lived in that locality for a long period of time and having passed over it on numerous occasions. The car, however, was traveling in second, at a conceded rate of speed not exceeding five miles an hour. The care required of a passenger under these circumstances is the care required of the great mass of mankind similarly transported,' under the same or similar circumstances. While it is the duty of a passenger where he observes a car being operated at an excessive or dangerous rate of speed, or where an imminent — 17 — danger is observed, to either make a protest or caution the driver, it cannot be said under the evidence in this case, as a matter of law, that the plaintiff failed to exercise ordinary-care which proximately contributed to the injury. The course that the operator of the car took at the time he entered upon this crossing would appear to be in accordance with the usual precaution that one might expect under like circumstances. The crossing was narrow, and at the east end thereof there was a washout. The attempt to shift to high is in accordance with the usual practice of automobile operators. The grade of the roadway on this crossing presented no obstructions to the operation of the car in high, and whether or not the approaching grade could have been made on high presented a problem that depended largely upon the power of the machine, with which perhaps no one was better familiar than Slattery himself. Slattery’s conclusion also to travel on the north edge was justified, in view of the fact that farther toward the west there was an upward grade and a turn in the road that obstructed his view of oncoming automobiles, and by reason of the narrowness of the crossing it would make it dangerous to travel on any other portion of the highway. When plaintiff first observed the earth on the edge of the highway giving way, the car was well within such edge. The most that can be said on the subject is that rational men might differ as to whether or not the plaintiff failed to exercise ordinary care, and when such a situation appears the question becomes one peculiarly for the jury. Advice and suggestions by a gratuitous passenger to his host are not ordinarily accepted in good grace, and this is a well known fact of which we can take judicial notice. Many things transpire in the course of an automobile trip under such circumstances which have a tendency to momentarily distract the attention of a passenger situated as the plaintiff was in this particular case. Sometimes it is the scenery, and at other times oncoming or approaching — 18 — cars; and in this particular instance it was the attempt of the plaintiff to- observe the operation of the shift, which had been the cause of some trouble prior to- the accident. The distance covered from the time the car entered the crossing up to the time of the accident is a matter of a comparatively few feet, and the time occupied in making such distance, even while the car was propelled at the rate of about five miles an hour, did not occupy more than a few seconds. We therefore cannot say as a matter of law that the court erred in submitting the question of plaintiff’s negligence to the jury. We next come to the question of the alleged contributory negligence of the defendant Slattery, which the defendant town claims should be found as a matter of law. Upon an examination of the car subsequent to the accident it was ascertained that the difficulty in the shift of the gears was caused by a broken dog in the gear-shift apparatus. This was not known to Slattery or the plaintiff at or prior to the happening of the accident. Both the operator of the car and the plaintiff had considerable experience in the operation of Overland cars. The gear shift constitutes a very delicate and important mechanism in automobiles, and,one towards which the operator of the car is not only required to, but as a rule does, devote considerable of his attention. It is well known to operators of automobiles that long distances can only be traveled speedily when the machine is operated in high, and the operation of the machine in high gear results in smooth action of the mechanical devices and is attended- with little noise; and furthermore, while the power is greater in second or in first, the speed is. accelerated in high and less gas is consumed. It would therefore appear to us that under all the facts and circumstances in the case the alleged negligence of the defendant Slattery presented a proper issue for the jury; and the jury having in its special verdict acquitted him of negligence, such finding must stand. Druska v. Western Wis. Tel. Co. 177 Wis. 621. 189 N. W. 152. — 19 — The evidence also shows that simultaneously with the operator’s shift of the gears into second the accident happened, and it is claimed by counsel for the defendant town that the failure of the shifting device to properly operate was an intervening cause of the accident, and that therefore the town cannot be held liable if it be admitted that the highway at the time of the accident was not in a proper condition. The learned circuit judge meets this situation in his opinion as follows: “But there was here no causal connection whatever between the giving way of the shifting device and the car’s going off the road. If the steering mechanism had given way or the right wheel of the car broken down, so that the giving way of the part had itself headed the car down the bank or turned it top near to the edge of the road, there would have perhaps been such causal relation as would have afforded basis for argument that this established proximate causation as a matter of law. But the driver had effected the shifting of gears. The car was operating in second speed when it left the road. The physical fact of the breaking off of two of the posts bears out the driver’s statement in this regard. The testimony of the witnesses clearly establishes that the car was going so slowly that its momentum was insufficient to break off the posts without the driving force of the car in second gear. The thing that precipitated the car down the bank was not the breaking of the shifting device, but either the negligence of the driver in failing to keep on the road, or the condition of the road, or the action of the two concurring. The broken gear shift was not at the time operating at all.” As to whether or not negligence on the part of the operator constituted an intervening cause we need not further consider, as the jury acquitted the operator of contributory negligence. There was thus established, first, the negligence of the defendant town and the fact that such negligence was a proximate cause, and second, that both the plaintiff and the operator of the car were free from negligence. There was thus no intervening cause such as is referred to in McFarlane v. Sullivan, 99 Wis. 361, 74 N. — 20 — W. 559, 75 N. W. 71; Orr v. Oldtown, 99 Me. 190, 58 Atl. 914; McMahon v. Harvard, 213 Mass. 20, 99 N. E. 458, and in other cases cited and relied on in the brief of the attorney for the defendant town. A motion was also made by the defendant town for a new trial upon the grounds of newly-discovered evidence, such motion being based upon affidavits. The trial court in its opinion held that if matters set forth in such affidavits had been presented upon the trial a different result might have been achieved. From the affidavits presented by the town it would appear that both the plaintiff and the defendant Slattery, at and prior to the time of the accident, were under the influence of liquor. It appears, however, •that the defendant town was in possession of sufficient facts to require it to make due proper inquiry with respect to the alleged intoxication of both the plaintiff and the defendant Slattery, but that no' effort was made in that behalf and no diligence was shown to establish the fact; and under these circumstances the learned trial judge overruled the motion of the defendant town. The application for a new trial on the ground of newly-discovered evidence is addressed to the sound discretion of the court. Walata v. State, 180 Wis. 646, 193 N. W. 61. The court having exercised its discretion, under all the facts and circumstances appearing in tire record, we cannot say that the trial court abused its discretion. Counsel for the defendant town argues a number of exceptions as a basis for a new trial, which we have carefully considered, but we are satisfied that no prejudicial error appears in the record. The judgment of the lower court must therefore be affirmed. By the Court. — Judgment affirmed.