Peterson v. Simms

Eschweiler, J. Defendant claims to have turned sharply to the west just before and to avoid the collision, but there is evidence warranting the jury’s finding that he was negligent in operating his car, and supporting plaintiff’s contention that defendant was driving faster than plaintiff, and in going into Rapids drive turned to the left of the intersection in violation of law. Plaintiff fixes the point of the collision' at some six feet to the west and six feet to the south of the curb at such northeast corner, and his car, after they both came to a [519] stop, was at the south curb of Rapids drive facing southwest, with defendant’s car some twelve to fifteen feet to the northwest. The passenger in plaintiff’s car had beep thrown therefrom by the collision and was lying between the two cars. Headlights were showing on both cars. At this time there was no building at or near this northeast corner which both were approaching, although plaintiff at first testified that there were buildings there intercepting his view. A telephone pole and several trees did stand there at the time. Nevertheless plaintiff had ample opportunity, if he had seasonably looked, to see defendant’s car for some distance north on Blake avenue as it approached the intersection. It was clearly plaintiff’s duty to look, because defendant had the right of way. Both plaintiff and his passenger testified that they did not see defendant’s car until the collision took place. If plaintiff had seen the other car, a slight checking of his own speed or swerving from his course would undoubtedly have avoided thfe collision. Under such state of facts, the jury having found, as they could not well otherwise do, that the plaintiff failed to exercise ordinary care in the operation of his car, the conclusion cannot'be avoided that such negligent operation and failing to keep a proper lookout was necessarily and as a matter of law a proximate cause of the collision, and the trial court should have so held by changing the answer to the fourth question above stated from “No” to “Yes” and then have dismissed both complaint and counterclaim. This case is ruled by Haggerty v. Rain, 177 Wis. 374, 186 N. W. 1017. In framing the second and fourth questions, and as indicated by the above italicised and quoted clause in each, referring to the negligence, if any such were found, of the plaintiff and defendant respectively, each such was referred to as “the” proximate cause instead of “a” proximate cause. A situation was here presented where there might be more [520] than one proximate cause as that term is understood, and a jury might well infer from the phraseology used that if they found defendant’s negligence to be “the” proximate cause it might interfere with or prevent their arriving at a conclusion that plaintiff’s negligence as found was also “the” proximate cause. It is of course not necessary to hold that such improper phraseology was of itself sufficient to constitute reversible error. By the Court. — Judgment reversed, and cause remanded with directions to dismiss both complaint and counterclaim.