Saltzberg v. Tax

Jones, J. In his contention that there was m> negligence on the part of the defendant and that the plaintiff was guilty of contributory negligence, the defendant’s counsel relies on the following cases: Feyrer v. Durbrow, 172 Wis. 71, 178 N. W. 306; Brickell v. Trecker, 176 Wis. 557, 186 N. W. 593; Hirschberg v. Milwaukee E. R. & L. Co. 179 Wis. 175, 190 N. W. 829; Blazic v. Franzwa, 179 Wis. 260, 191 N. W. 572; Koperski v. Hoeft, 179 Wis. 281, 191 — 376 — N. W. 571. In the first of these cases there was no evidence of excessive speed except the estimate of the plaintiff, a boy having no' experience in judging as to speed, when he was only from two to seven feet away from the car as he first saw it, and when the physical facts conclusively established that there was no excessive' speed and it was apparent that the boy could see the automobile as soon as the driver could see the boy in the street. It was held that if he was not negligent in failing to see the automobile, the driver was not negligent in failing to discover, him. In the second case the plaintiff was crossing the intersection and was struck by a car coming from the west. She made no claim that at any time she looked to the west to ascertain whether automobiles or other vehicles were approaching from that direction. She and the driver discovered each other at about the same time, and it was a physical certainty that if she had but glanced in the direction from which she was required to anticipate approaching traffic after having crossed the middle of the street, she would have observed the automobile in time to have avoided the accident. The rule announced in the Feyrer Case was followed, and it was said: “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.” In both of these cases the accident occurred in the daytime. In .the Hirschberg Case the circuit court ordered judgment for the defendant on the ground of contributory negligence. In that case, when the plaintiff last looked for an approaching street car she was distant from the tracks not more than seven feet. It was held by this court that although there was a snow storm at the time, so large an object as an approaching street car must have been within her vision if she had looked. In the Blazic Case it was held that on the undisputed testimony there was no negligence on the part of the defendant, and the question of contributory negligence was not decided. — 377 — It seems to us very clear that the question of the defendant’s negligence was for the jury. Although the greater number of witnesses estimated the speed of the automobile at from ten to twelve miles per hour, the testimony of Leviant cannot be disregarded in this connection. He had the requisite experience and no witness had a better opportunity than he to observe the speed of the automobile. The statute in force at the time of the accident, in the case at bar, forbade the operation of automobiles within the corporate limits of any city at a speed exceeding fifteen miles per hour and required that at the intersection of streets the speed should be reduced to such a rate as would tend to avoid danger of accident. Sec. 1636 — 49, Stats. 1919. The question of contributory negligence presents greater difficulty. We consider, however, that the cases cited by the defendant’s counsel are distinguishable. In the first two cases above cited, and those relied on most by the defendant’s counsel, the collision took place in the daytime, and in them there was practically no conflict in the testimony. In the Blazic Case, as already stated, the question of contributory negligence was not decided. In the Koperski Case it was held that there was no evidence from which any inference of negligence on the part of the defendant could be drawn. Now we have a case in which the testimony is full of conflict. None of the witnesses testified that a street car was passing east, except the plaintiff, his wife, and the two witnesses on the north-bound car, while Leviant, who was waiting for such a car, swore he neither saw nor heard it. The time of the arrival of this north-bound car was disputed by Leviant, who testified that it came to the intersection about a minute after the accident. Moreover, the testimony of the two witnesses was materially different. Struck located the plaintiff out in the street seven or eight feet and said that she was going in a northwesterly direction from the curb. Bub, the other witness, said that he saw no woman leaving the curb. He said he saw her for the first — 378 — time when she and the- car came together, and that she was falling when he saw her. There was a direct conflict in the testimony as to the distance traveled by the car after the accident. The defendant testified that he did not know how far ahead the lights on his car would show, but he “presumed about a hundred feet or so.” The statute then in force required as to the minimum that the headlights should be such as “to enable the driver to clearly distinguish a person, vehicle or other substantial object two hundred feet ahead.” Sec. 1636 — 52a. We have pointed out perhaps in unnecessary detail these conflicts in the evidence to show the material differences between this case and those relied on by the defendant’s counsel. Some of those decisions have been often cited and affirmed by us and we regard them as quite consistent with that which is made in this case. Counsel for the defendant earnestly urges that the plaintiff must have seen the- approaching automobile in time to avoid the accident, if she looked. Her testimony that she did look carefully on her way across the street, both before and after passing the center, is unequivocal. There is no testimony as to the distance at which an unlighted automobile would be visible under the existing circumstances. It is to be assumed that the jury in the civil court took into consideration the degree of care used by the plaintiff and the defendant, including conflicts in the evidence and the credibility of the witnesses. They evidently concluded that the defendant was driving his car at an excessive rate of speed across the intersection, and that although the plaintiff was watchful she did not see the danger until it was too late to escape. Two able judges in their decisions analyzed the testimony and approved the verdict. The language used by Mr. Justice Rosenberry in a recent case seems directly in point: “The circumstances are such that 'we cannot say that 'the minds of reasonable men can come to but one conclusion upon the law, facts, and circumstances in this case.’ It must be borne in mind that we are not dealing here with the — 379 — great weight or preponderance of the evidence, but with the question of whether or not the contributory negligence of Mrs. Geffert is conclusively established as a matter of law.” Geffert v. Kayser, 179 Wis. 571, 192 N. W. 26. It is unnecessary to cite authority as to the weight to be given to the findings of the jury and the decisions of the trial court on questions such as are here presented. In our opinion the following cases are more applicable to the facts of this case than those relied on by the defendant’s counsel and justify our conclusion that the issues involved here were for the jury: White v. Kane, 179 Wis. 478, 192 N. W. 57; Moody v. Milwaukee E. R. & L. Co. 173 Wis. 65, 180 N. W. 266; Shortle v. Sheill, 172 Wis. 53, 178 N. W. 304; Grimes v. Snell, 174 Wis. 557, 183 N. W. 895; Cunnien v. Superior I. W. Co. 175 Wis. 172, 184 N. W. 767; Enea v. Pfister, 180 Wis. 329, 192 N. W. 1018; Callies v. Reliance L. Co. 182 Wis. 53, 195 N. W. 975; Shanley v. Monarch C. Co. 182 Wis. 231, 196 N. W. 227. Counsel for the defendant argues that a new trial should have been granted because, during the impaneling of the jury, jurors were questioned by the plaintiff’s counsel as to whether they were officers in any automobile ■ insurance company. One juror volunteered a reply that the defendant’s counsel was the attorney for his insurance company. It does not appear that any objection was made at the time, and the question is only raised by affidavit on the motion for new trial. We must hold that even if there was error it was waived. It is also urged that during the argument to the jury the plaintiff’s counsel stated that the fact that the jury might answer the last question with reference to damages did not mean that the plaintiff would recover that amount, and that it was very important that the other questions be carefully noted before answering them. The plaintiff’s counsel denied that he made such a statement. So far as we can determine from the record, the objections were made by way of recital — 380 — of what had taken place. No ruling of the court was asked or made except that the court told the jury that no question was more important than any other. It is unnecessary to decide whether the remarks of counsel on this subject transgressed the rule, since, although no ruling was asked by counsel,' the court stated the rule correctly and it was not certain that the remarks complained of were made. Heucke v. Milwaukee City R. Co. 69 Wis. 401, 34 N. W. 243; Jakopac v. Newport M. Co. 153 Wis. 176, 140 N. W. 1060. In the brief of plaintiff’s counsel there is a long argument in which it is claimed that it is proper to prove, in cases of this kind, that the defendants are insured against loss. It is also argued at great length that it is proper for counsel to disclose the legal effect of their answers upon a special verdict, to the jury, with respect to the effect upon the rights of the parties. Although we have had the benefit of the personal opinion of counsel on these subjects, he has cited no direct authority to sustain his views and he concedes that they are contrary to the well settled rules in this state. We see no reason for a. discussion of these subjects by us in this case or for departing from the rules often declared by this court. By the Court. — Judgments affirmed. The appellant moved for a rehearing. In support of the motion there was a brief by Dale C. Shockley, attorney, and P. PI. Paulsen, of counsel, both of Milwaukee. In opposition thereto there was a brief by Pctdway, Skol-nik <& Winnecour, attorneys, and Joseph A. Padway, of counsel, all of Milwaukee. The motion was denied, with $25 costs, on January 13, 1925.