Gilbert v. Wittenberg

Eschweiler, J. A more detailed discussion of this accident is deemed unnecessary. The record satisfies us that the court was right in holding- as a matter of law that under the situation — the obstruction to the view; plaintiff’s rate of speed; defendant’s driver having the right of way; the evident want of proper control of his car by plaintiff, — such negligence by plaintiff was shown as to defeat his claim of right to recover. Smith v. Taylor-Button Co. 179 Wis. 232, 236, 190 N. W. 999; Bertschy v. Seng, 181 Wis. 643, 195 N. W. 854. The granting of a similar motion as against defendant was predicated solely on the ground that defendant’s driver failed to keep to the right of the center of the intersection on making the turn to the east. On examination before trial defendant’s driver testified as to his manner of making the turn and indicated the line he followed, on a sketch of the premises. The turn so indicated was to the right of the intersection and therefore proper under the statute. Such sketch was offered in evidence on the trial by plaintiff’s counsel. On the trial the driver indicated his course on another sketch, which as so indicated brought him to the left of the intersection, and he testified that he did cut such corner in making the turn. On [184] further examination, however, he testified that by the expression “cutting the corner” he meant the same as by the expression “turning the corner.” We think the trial court was in error in holding as a matter of law that the negligence of the defendant’s driver in turning to the left instead of to the right of the intersection, if such he did, thereby violating the statutory rule, was sufficient to defeat a recovery on the counterclaim. Under a situation showing a violation of the statute in question, whether it is a proximate cause of the injury is ordinarily for the jury, and we think it was so in this case. Mere violation of the statute is not enough, — there must also be a causal connection between such violation and the injury. Smith v. Taylor-Button Co. 179 Wis. 232, 236, 190 N. W. 999, supra. The jury might have found under this record that the turn, wherever made, was not a proximate cause of the collision. There should be a new trial on this issue. By the Court. — Judgment affirmed on plaintiff’s appeal and reversed on defendant’s review for further proceedings.