Schneider v. Steindler

Doerfler, J. A situation rather unusual in automobile collision cases is here presented by the defendant’s repeated frank admissions as to the speed of his car. He also, with equal firmness and frankness, conceded that he made no attempt to diminish his speed or to control his car by means of his brakes. No witness at the trial contradicted him in this behalf. It would thus appear that defendant’s negligence, both as to speed and failure to control, was established as a verity in the case, and such negligence, under the facts of this case, must be taken as a proximate cause of the collision as a matter of law. Ortmann v. A. Leath & Co. 187 Wis. 616, 205 N. W. 397. And when the learned circuit judge in his opinion draws an inference [132] from the testimony of one Raabe, a passenger in plaintiff’s car, to the effect that the plaintiff started to proceed over the crossing at a rate of eight miles an hour, while the defendant was still thirty feet north of the north crosswalk, such inference is not sufficient to overcome the uncontradicted testimony of all of the witnesses that the defendant operated his car at an excessive and unlawful rate -of speed; and this appears particularly true when we consider the testimony on which the plaintiff’s negligence is based. Both the civil court and the circuit court place great reliance upon defendant’s testimony, and his frank admissions, contrary to his own interests, fully warranted such reliance. Pie testified that when he was thirty feet north of the north crosswalk he looked to the west and saw plaintiff’s car at an alley about 120 feet west of the west crosswalk; that plaintiff’s car at that time was proceeding at a very “rapid gaitand that when plaintiff arrived at the west crosswalk his car started to skid, and skidded over the entire length of Hadley street up to the point of collision. One Muldoon, a witness for the defendant, who appeared upon the scene shortly after the collision, testified that he saw the skid marks from the west crosswalk clear up to the southeast corner of the intersection, and that such skid marks were plainly visible and pointed to the southeast. If this testimony of the defendant and of the witness Muldoon be accorded credence, the plaintiff must have proceeded from a distance of 120 feet west of the west crosswalk at an unlawful and excessive rate of speed, and the skid marks are persuasive that he applied his brakes at such west crosswalk, resulting in the skidding. One of two situations must be taken as the truth. Either the learned circuit court’s, inference as to comparative speed is correct, or the testimony of the-defendant and the witness Muldoon as to the excessive speed of the plaintiff is correct. We are convinced that the latter is entitled to the greater credence, and justified the findings of the trial court as to [133] plaintiff’s negligence on the subject of speed. Such finding, therefore, cannot be disturbed. Admittedly the plaintiff had not equipped his tires with chains, and this presented a question of fact for the trial court to determine. Huddy, Automobiles (6th ed.) p. 402. By the Court.- — The judgment of the circuit court dismissing plaintiff’s complaint is therefore affirmed; while the judgment on defendant’s counterclaim is reversed. Plaintiff is allowed his costs and disbursements on this appeal.