Pisarek v. Singer Talking Mach. Co.

• Decision Date: 11 November 1924
• Citation: 185 Wis. 92,200 N.W. 675
• Parties: PISAREK v. SINGER TALKING MACH. CO.
• Court: Wisconsin Supreme Court

185 Wis. 92

200 N.W. 675

PISAREK

v.SINGER TALKING MACH. CO.

Supreme Court of Wisconsin.

Nov. 11, 1924.

Appeal from Circuit Court, Milwaukee County; Edward T. Fairchild, Judge.

Action by Emily Pisarek, by Joe Pisarek, her next friend, against the Singer Talking Machine Company. A civil court judgment for plaintiff was reversed by the circuit court, and new trial ordered, and plaintiff appeals. Reversed and remanded, with instructions.

This action was commenced in the civil court of Milwaukee county to recover damages for personal injuries. It appears that on the 1st day of May, 1922, plaintiff, a little girl three years of age, with a little boy companion of about the same age, was crossing Fourth avenue, running north and south, in the city of Milwaukee, proceeding from the west to the east side thereof. Defendant's truck was proceeding in a northerly direction on said street. The driver of the truck saw the children when he was at a distance of from 60 to 65 feet from them. He sounded the horn and shut off the gas, but did not apply the brakes, and continued his course about seven or eight feet from the east curb. The children stopped somewhere near the middle of the street, and stood there until the truck came within 5 or 6 feet of them; the left-hand side of the truck being about 3 feet east of where they were standing. At that time--that is to say, when the children were about 3 feet west of the left-hand side of the truck, and 5 feet north of the front end thereof--the plaintiff suddenly attempted to cross the street in front of the truck, and was struck by the left end of the bumper in front of the truck.

The case was tried in the civil court before a jury. The jury returned a special verdict, finding that the truck was operated at an excessive rate of speed and that the driver failed to apply the brakes as soon as he should have, in the exercise of ordinary care, and that such excessive rate of speed and failure to apply the brakes were both proximate causes of the injury. Damages were assessed at the sum of $1,000. Judgment was rendered in favor of the plaintiff upon this verdict. From the judgment so rendered, the defendant appealed to the circuit court for Milwaukee county, where the judgment was reversed, and new trial in that court ordered. From that order, plaintiff appeals to this court.Maurice A. Goldberg, of Milwaukee, for appellant.

Harvey M. Burns, of Milwaukee (Hoyt, Bender, McIntyre & Hoyt, of Milwaukee, of counsel), for respondent.

OWEN, J. (after stating the facts as above).

There is nothing in the record to indicate the grounds upon which the circuit court reversed the judgment of the civil court and granted a new trial in the circuit court. The respondent contends that the order may be sustained upon three grounds: First, that there was no evidence upon which to sustain the judgment; second, that the court erred in admitting certain photographs in evidence; and, third, the damages are excessive.

[1] It is apparent that the court did not reverse the judgment, because there was no evidence to sustain it, as, if such had been the view of the court, a new trial would not have been granted in the circuit court. However, in response to the contention made in that behalf by respondent's attorney, it is necessary for us to consider whether the judgment of the civil court was without any evidence to support it. Since the plaintiff was only three years of age, there is no question of contributory negligence to consider, and the only question is whether there was actionable negligence on the part of the driver of the truck.

There was considerable evidence upon the question of the rate of speed at which the driver was proceeding at the time of the accident, and it appears that considerable weight was attached to the question of whether the truck was proceeding at a greater rate of speed than 15 miles per hour, the statutory limit of the speed of motor vehicles in cities. There was testimony on the part of the plaintiff that the truck was running from 20 to 25 miles an hour, while the driver of the truck testified that it was running from 10 to 12 miles an hour. It is conceded that the truck stopped within 12 or 15 feet after striking the child, which fact is hardly consistent with a speed of 20 or 25 miles an hour. However, we do not regard the exact rate of speed as controlling, or in fact very material.

[2] The statute (section 85.08) prohibits the driving of motor vehicles upon city streets at a greater rate of speed than 15 miles per hour. But this is not the only limitation. The same section provides that:

“No person shall operate a motor vehicle recklessly or at a rate of speed greater than is reasonable and proper with regard to the width, traffic and use of the highways and the rules of the road, or so as to endanger the property, life or limb of any person.”

A violation of these statutory limitations constitutes actionable negligence, where there is causal connection between the violation and the injury. Steinkrause v. Eckstein, 170 Wis. 487, 175 N. W. 988.

[3][4] Waiving the question of whether the truck was going in excess of 15 miles an hour, it must be considered whether the truck was going at a speed...