Brewster v. Ludtke
| Decision Date | 07 March 1933 |
| Citation | 247 N.W. 449,211 Wis. 344 |
| Parties | BREWSTER v. LUDTKE ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Municipal Court of Outagamie County; Theodore Berg, Municipal Judge.
Action by Eathen Brewster, special administrator of the estate of Mrs. Ella Brewster, deceased, against Lester Ludtke and others. From judgment for plaintiff, defendants appeal.--[By Editorial Staff.]
Reversed, with instructions to dismiss complaint.
Action commenced September 12, 1931, to recover for the death of a pedestrian alleged to have been caused by negligence of the driver of an automobile. Judgment for the plaintiff was entered January 6, 1932. The defendants appeal.L. Hugo Keller, of Appleton, for appellants.
H. F. McAndrews, of Kaukauna, for respondent.
Mrs. Ella Brewster was killed by being struck by an automobile on July 5, 1931. The jury found that the driver of the automobile was, and that the plaintiff was not, negligent. Judgment went on the verdict for the plaintiff. It is conceded that the finding of negligence on the part of the driver of the automobile is supported by the evidence. The appellants assign as error that the plaintiff was guilty of contributory negligence as matter of law.
Mrs. Brewster was crossing a street when struck by the automobile. The case turns on whether at the time she was struck she was on the crosswalk. Section 85.44 (1), Stats., provides that the operator of an automobile shall yield the right of way to a pedestrian crossing the highway within any marked or unmarked crosswalk, except at those intersections where the movement of traffic is being regulated by traffic officers or control signals. Section 85.44 (4), Stats., provides that every pedestrian crossing a highway at any point other than a marked or unmarked crosswalk shall yield the right of way to vehicles upon the highway.
[1][2][3][4] The undisputed evidence of the only eyewitnesses was to the effect that when struck Mrs. Brewster was at least twenty-five or thirty feet north of the center of the crosswalk. This testimony is corroborated by the testimony of another witness who was standing beside his automobile which was parked in the driveway into his residence between the sidewalk and the curb who heard “a thud and the screeching of brakes,” turned immediately, and the automobile was opposite his automobile and Mrs. Brewster was lying beside it not more than fifteen feet from the witness's car. Skid marks of the automobile that struck her extended from a point half-way from the crosswalk to the point...
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