Trudell v. James Cape & Sons Co.

The following opinion was filed March 10, 1925: Crownhart, J. The only question in this case is whether there was credible evidence to support the verdict of the jury. The plaintiffs both testified that the time of the accident was between 5 and 5:30, and they thought it was about 5:30. On the question of time of the accident Walter J. Trudell testified that— “The accident happened closer to 5:30 than to anything else. . . . It was breaking daylight; in fact, we would have been just as well off without lights as we would have been [280] with lights. ... I think it was more daylight than it was dark. ... I had no trouble to see 150 to 200 feet ahead without any trouble at all.” Russell Trudell testified that— “It was approximately between 5 and 5:30, as my brother says. . . . You could see about 200 feet ahead without lights.” The weather was clear and the sun rose on September 17th at 5:34 a.m. The defendant testified that the accident happened at about 4:20 a.m.; that he had left his place, about four miles from the accident, a minute or two after 4; that “the time I leave my home usually depends on the place I am working. I was headed for Libertyville at the time of the accident; I wanted to be at Libertyville at 7 o’clock. Libertyville is about thirty-five or • thirty-six miles from where I live.” Under this testimony it would seem that the question of time was for the jury. Neither party could definitely state the time. It is true that the defendant definitely fixed the time that he left his home, but the jury might well believe him mistaken as to that. He had only thirty-six miles to go, was driving at the rate of twenty miles an hour, and did not wish to arrive at Libertyville until 7 o’clock. If he left at 4:02 he started more than an hour eárlier than necessary. The jury probably came to the conclusion that he left home at >5:02 instead of 4:02, and that is the more reasonable view of the matter. The defendant, when interrogated as to how the accident happened, said: “I don’t know how the accident occurred, at all. I first saw the two rear cars which were being towed by the Buick car after the party picked me up. I at no time saw them before that. There were lights on the Buick car. . . . The Ford and Briscoe cars were right back of the Buick car immediately after the accident. They were located on the east side of the road. ... I didn’t look as to whether or not there were any headlights on the Ford or Briscoe. ... I did not apply my brakes at any time. I never knew what [281] happened. ... I didn’t see any cars swing out to the middle of the road.” On this testimony we are at a loss to see how the court was justified-in changing the answers of the jury. It seems plain that all the questions involved were questions of fact for the jury to pass upon. Aside from the time of day there was no substantial dispute as to the facts. Clearly, under the testimony the defendant ran across the center of the road without any excuse and bumped into the plaintiffs’ cars. Without dispute there was a spot light on the Briscoe car which could be seen by the defendant, and there is no dispute but that it was light enough for persons to see 150 feet to 200 feet ahead. The defendant claims that the plaintiffs should have had side lights on the Ford and Briscoe cars, and cites order 2155 of the industrial commission, which reads as follows: “Every trailer, except small two-wheeled trailers of 1,000 pounds capacity or less, which are towed- closely behind a motor vehicle, shall display a side light, visible from both front and rear, on the left side.” But no lights are required except from thirty minutes after sunset to thirty minutes before sunrise. Order 2151, Industrial Commission. So, under the finding of the jury; no side lights were required, and in any event the jury found that the lack of side lights was not the proximate cause of the accident. Besides, unless there is a causal connection between the failure to have lights and the accident, such failure to have lights was not a defense. Steinkrause v. Eckstein, 170 Wis. 487, 490, 175 N. W. 988, and cases cited. By the Court. — The judgment of the circuit court is reversed, with directions to reinstate the verdict of the jury as rendered, and enter judgment thereon for plaintiffs. A motion for a rehearing was denied, with $25 costs, on June 22, 1925.