Callahan v. Van Galder

• Decision Date: 08 April 1958
• Citation: 3 Wis.2d 654,89 N.W.2d 210
• Parties: Charles CALLAHAN, Appellant, v. Irving S. VAN GALDER et al., Respondents.
• Court: Wisconsin Supreme Court

Page 210

89 N.W.2d 210

3 Wis.2d 654

Charles CALLAHAN, Appellant, v. Irving S. VAN GALDER et al., Respondents.

Supreme Court of Wisconsin.

April 8, 1958.

Snyder, Greco & Mortell, Milwaukee, for appellant.

George D. Young, Milwaukee, for respondents.

BROWN, Justice.

The accident took place April 17, 1956, at the corner of South Kinnickinnic Avenue and East Bay Street in the city of Milwaukee. The time was about 11:25 A.M. Visibility was good, the pavement was dry. A strong wind was blowing from the north.

Mrs. Callahan, going north on foot on the east sidewalk of Kinnickinnic Avenue, reached the Bay Street corner at approximately the same time that defendant's bus reached it. The bus had been proceeding north on Kinnickinnic Avenue. Defendant Van Galder who was driving it intended to turn east on Bay Street. The two streets meet at an acute angle so that such a turn is one of more than 90 degrees. This bus was about 36 feet long and 8 feet wide and its dimensions and the nature of the turn required it to swing wide at the corner in order to leave Kinnickinnic Avenue and enter Bay Street without running its rear wheels over the sidewalk. Defendant driver made a wide turn in this manner at a speed of four or five miles per hour. He saw Mrs. Callahan before he commenced his turn while she was still on the sidewalk.

He did not see her or look in her direction after he began the turn.

Mrs. Callahan intended to continue north on the east side of Kinnickinnic Avenue. As the bus was in the process of turning but had not yet entered upon the crosswalk crossing Bay Street (so the jury found), Mrs. Callahan did enter on that walk. She was holding her hat on her head with her left hand. She and defendant driver failed to see each other and as their paths crossed the bus struck her with its right headlight. It pushed her a few feet until she fell under the right front wheel. That ran over her body and caused the injury from which she died in the emergency hospital an hour or two later.

Appellant's first contention is that Mrs. Callahan, as a matter of law, was not negligent and the court erred in refusing so to hold. To support this proposition appellant relies heavily on the presumption that a person killed in an accident exercised due care for his own protection. Citing Weber v. Mayer, 1954, 226 Wis. 241, 63 N.W.2d 318, appellant says that the benefit of this presumption remains until evidence is introduced which establishes, as a fact, the negligence of the deceased. The cited case actually held that the benefit of the presumption remains until there is evidence introduced which establishes as a fact the negligence of the deceased, or which gives rise to the reasonable inference that deceased was negligent. The presumption of due care drops out of the case when evidence sufficient to support a contrary finding comes in. McCarty v. Weber, 1953, 265 Wis. 70, 60 N.W.2d 716. The presumption, too, can be overcome by inferences drawn from other evidences. Prunty v. Vandenberg, 1950, 257 Wis. 469, 44 N.W.2d 246.

A witness of the present accident was in an automobile immediately behind and to the right of the bus on Kinnickinnic Avenue. She saw Mrs. Callahan step from the sidewalk into the street while the bus was in the act of turning. She testified that she could see Mrs. Callahan was going to be hit. This evidence would support an inference by the jury that Mrs. Callahan would have seen the same thing if her lookout had conformed to the standard of due care. Also, immediately after the accident Mrs. Callahan said to the bus driver, 'I didn't see you and I ran right into the bus.' The front end of the bus was swinging across her path. She was walking directly toward it, or the jury could so believe, yet she did not see it. We conclude that there is sufficient credible evidence of her negligence in lookout to eliminate the presumption of due care and to sustain the findings both of Mrs. Callahan's negligence and of its causal effect.

Appellant's next contention is that the verdict was inconsistent and the inconsistency required a new trial. Sec. 85.44(1), Stats., commands the operator of any vehicle to yield the right-of-way to a pedestrian crossing the highway at a crosswalk, with exceptions not present here. The question in the verdict, 'At and just before the contact between deceased, Mary Callahan, and defendant Van Galder's motor bus, was Mary Callahan within the limits of the east crosswalk of South Kinnickinnic Avenue where that street intersects with East Bay Street, before the bus entered that crosswalk?' is an inquiry directed to ascertaining who had the right-of-way. The answer that Mrs. Callahan was on the crosswalk first is a jury finding that Mrs. Callahan had the right-of-way and the defendant failed to yield it. That is a breach by defendant of sec. 85.44(1), Stats., a safety statute, which constitutes negligence as a matter of law. Edwards v. Kohn, 1932, 207 Wis. 381, 385-386, 241 N.W. 331; Callahan v. Rando, 1942, 240 Wis. 417. 419-420, 3 N.W.2d 688. We consider that this question submitted to the jury the issue of the driver's negligence in respect to right-of-way. Another question concerned his negligence in respect to lookout. He was found negligent in each respect. The jury found that defendant was negligent in two respects but that neither was causal. Then, in its comparison it charged defendant with 25 per cent of the total causal negligence. Obviously the verdict was inconsistent.

In Statz v. Pohl, 1954, 266 Wis. 23, 62 N.W.2d 556, 63 N.W.2d 711, we gave careful...