Anderson v. Sparks

• Citation: 142 Wis. 398,125 N.W. 925
• Parties: ANDERSON v. SPARKS.
• Decision Date: 05 April 1910
• Court: United States State Supreme Court of Wisconsin

142 Wis. 398

125 N.W. 925

ANDERSON

v.SPARKS.

Supreme Court of Wisconsin.

April 5, 1910.

Appeal from Circuit Court, Columbia County; Chester A. Fowler, Judge.

Action by Peter M. Anderson against William Sparks. Judgment for plaintiff, and defendant appeals. Affirmed.

This action was brought to recover damages occasioned by a collision between the plaintiff's horse and wagon and the defendant's automobile. The complaint alleges that on the 15th day of October, 1908, at about 7 o'clock p. m., the plaintiff was traveling in a wagon drawn by one gentle horse, the property of plaintiff, along a public highway known as the “Columbus Road,” in the town of Lodi, Columbia county, Wis., which highway is used by the general public for travel, and that at the time in question the defendant was the owner of an automobile and was traveling therein upon the highway mentioned; that, when plaintiff saw the defendant's automobile approaching, he drove to the right of the traveled track; that the defendant negligently and carelessly managed and drove his automobile, and by reason of the careless and negligent manner in which he drove and managed it ran into the plaintiff's wagon, thereby throwing plaintiff from said wagon, causing the injuries complained of. The defendant answered, admitting the ownership of the automobile, and that he was traveling therein at the time and place mentioned, and denying each and every other allegation in the complaint. The jury returned the following verdict:

“(1) Did the defendant use ordinary care in handling and running his automobile at the time he was approaching and met the plaintiff? Answer: No.

(2) If to the above question you answer ‘No,’ then was the want of ordinary care thus found the proximate cause of the plaintiff's injury? Answer: Yes.

(3) Was there any want of ordinary care on the part of the plaintiff that contributed to produce his injuries? Answer: No.

(4) What sum will compensate the plaintiff for the injuries he sustained? Answer: $250.”

After verdict and before judgment the defendant made separate motions to change the answers to questions 1, 2, and 3 of the verdict, and for judgment in his favor on the verdict as so amended, which motions were denied and due exceptions taken. The defendant also moved for an order setting aside the verdict and for a new trial upon newly discovered evidence; also moved upon the minutes for a new trial, which motions were denied and due exceptions taken. Thereafter judgment was rendered upon the verdict in favor of the plaintiff and against the defendant, from which this appeal was taken.Richmond, Jackman & Swansen, for appellant.

Grotophorst, Evans & Thomas, for respondent.

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

It is urged by counsel for appellant that the court erred in refusing to change the answers in the special verdict on the ground that such answers of the jury are not supported by the evidence. We cannot agree with counsel in this contention, but, on the contrary, think the questions submitted upon the evidence were fairly jury questions. The Columbus road, upon which the accident occurred, extends in an easterly direction from the village of Lodi, and is a much traveled public highway. The point of accident was about 250 feet east of the village limits, and the traveled portion at this point is about 18 feet wide with a ditch on each side; there being also along the north edge of the traveled road a foot path used by pedestrians. About 650 feet east of the place of accident the road ascends, and from that point to the village limits the view is unobstructed. North of the road, and about 600 feet west from the place of accident, is an electric light station, the light being suspended about 12 feet above the ground, but, owing to the slope from the location of the light to the highway, the light is about on a level with the highway. There were also other lights in close proximity to the highway. These lights had a blinding effect upon the defendant, who was traveling toward them at the time of the accident. The defendant was 43 years of age, was familiar with the highway and lights, and at the time in question was operating a two-cylinder Ford, ten horse power machine going toward the village of Lodi, one Granat riding with him. The automobile had a wheel base of 82 inches, its width being of standard gauge about the same as a wagon, the hubs extending outside about 3 inches on each wheel. It was equipped with three lamps, but the one on the left nearest plaintiff was not lighted. The evidence on the part of the defendant tends to show that at the time of the injury he was traveling on the north side of the highway, and did not see plaintiff until he struck his wagon. The plaintiff was driving east from the village of Lodi with a democrat wagon and an old pony attached thereto. He had scantlings, boards, and some other articles in the wagon, the scantlings projecting back of the wagon box about eight feet. Plaintiff was familiar with the road, and saw the automobile lights at a distance of between 20 and 40 rods from the place of accident. When he saw the lights, he drove his horse south as far as he could and close to the ditch, and stopped, and the automobile struck him about a minute after he had stopped. The left wheels of the vehicles collided; the wagon wheel striking the axle of the automobile about six inches from the hub. The plaintiff was thrown out. His horse became detached, and ran away. The defendant testified that the first he saw of plaintiff's rig was the reflection of the automobile lights upon the scantlings which projected beyond plaintiff's wagon box, and he estimates that the reflection was then about 20 feet away; the collision following almost instantly. The plaintiff testified that the defendant turned his automobile south and struck his wagon, and the defendant denies this. There is also some other evidence respecting tracks of what were supposed to be those made by the automobile turning south at the place of accident, but this testimony is disputed by the defendant, and it is claimed that such tracks were those of a wagon which passed shortly after the collision.

The only real controversy under this head is the place in the road where the collision occurred; the plaintiff contending that it occurred on the south side, and the defendant insisting that it occurred on the north side. We have attempted to give only some of the leading points of the evidence, and shall not attempt to consider the proof in detail or the points made by counsel on each side respecting its weight and credibility, because we think upon the whole evidence the question was clearly for the jury. The jury was entitled to believe the testimony offered by the plaintiff tending to show that the collision occurred on the south side of the highway, and upon that theory the findings of the jury are clearly supported by the evidence. The defendant put in evidence a model of the automobile and also the lamp which was struck by the plaintiff's wagon wheel, and it is claimed that the dents in the lamp occasioned by the collision as well as the marks on the axle of the automobile where the wagon wheel struck it and the bent wagon tire clearly show that the collision could not have occurred by the automobile turning sharply south into the plaintiff's wagon. And, moreover, the plaintiff testified that he did not see the automobile turn. But the fact remains that the automobile did run into the plaintiff's wagon, and, if the plaintiff was on the south side of the highway as he testified, then clearly the defendant was guilty of negligence, whether he struck the wagon by turning into it or by running too far to the south on the highway. We cannot think that the dents in the automobile lamp are very significant in determining whether the automobile was running at an angle or otherwise. But all of these questions were properly for the jury. There is nothing in the evidence rendering the plaintiff's testimony unworthy of belief. Nor can it be said to be against the physical facts appearing from the testimony or all reasonable probabilities. The plaintiff's testimony is to the effect that the automobile did turn sharply south and struck his wagon, but that it turned so quickly that he did not see it. It is true that plaintiff may have been influenced in his idea that the automobile turned into him from an examination after the injury of the tracks which he supposed to be those of the automobile, and from their general course indicating that the automobile turned south, and thus collided with the wagon. There is other evidence tending to show that the tracks, whether automobile or wagon tracks, where they curved south, were west of the point of collision, and therefore support the idea that they were wagon, and not automobile, tracks. But this is left somewhat indefinite in view of the fact that the wagon appears from the testimony to have been moved after the collision, first back, then ahead, but how far ahead does not appear. Great stress is placed by counsel for appellant upon the fact that the evidence does not show that the plaintiff was on the south side of the highway. In this we think counsel is mistaken, but, even if it be admitted that the jury found upon a different theory, namely, that the plaintiff was near the middle of the road, or even slightly north of the center, we think it was still a question for the jury whether the defendant was negligent, and the plaintiff guilty of contributory negligence. It will be remembered that the evidence shows that the plaintiff stopped before the collision, and that the night was dark and the traveled track only 18 feet in width. Now, it would be a question for the jury whether or not plaintiff was guilty of negligence under the circumstances and in the confusion of the moment with the automobile coming upon him, even if he stopped a little north of the center of the road. He...