Carson v. Leet

• Decision Date: 07 April 1925
• Citation: 203 N.W. 394,186 Wis. 566
• Parties: CARSON v. LEET ET AL.
• Court: Wisconsin Supreme Court

186 Wis. 566

203 N.W. 394

CARSON

v.LEET ET AL.

Supreme Court of Wisconsin.

April 7, 1925.

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

Action by Elsa W. Carson against Charles N. Leet and the Green Cab Company. Judgment for plaintiff, and defendant Green Cab Company appeals. Affirmed.

This is an action brought to recover damages for personal injuries received by the plaintiff, a married woman 38 years of age, while riding in one of the automobiles of the defendant Green Cab Company on January 1, 1923. The injuries were suffered when an automobile, driven by the codefendant Leet, collided with the cab in which the plaintiff was being carried at the intersection of Kenwood boulevard and Downer avenue in the city of Milwaukee.

The driver of the cab testified that he was going at the rate of about 18 miles an hour, but that he slowed down to 13 miles an hour as he approached the intersection in question;that when about 40 feet from the intersection he looked to the north, and saw the car driven by Leet coming down Downer avenue about 250 feet from the intersection; that as he entered the intersection he again looked to the north and saw the car 90 feet away, and, as he had the right of way proceeded to cross Downer avenue; that after he was well into the intersection he realized the imminence of a collision, and, not having space enough in which to stop and avoid it, he increased the speed of the cab in an effort to cross before the other car struck him; that he was almost across the street when the car driven by Leet at an excessive rate of speed in a southerly direction on Downer avenue struck the cab on the left side, just over the rear wheel, causing the injuries of which the plaintiff complains.

Mr. Leet and Mr. Gutenkunst, who was riding in the cab with the plaintiff, testified that the cab was going from 20 to 25 miles an hour when it entered the intersection, and a Mr. Kronberg, who witnessed the collision, said that the cab was going at the rate of from 13 to 15 miles an hour. The driver of the cab varied somewhat from time to time as to just where it was that he slowed to 13 miles an hour, and his statement that he did not consider putting on the brakes until he perceived the threatening collision was disputed by the witness Kronberg, who stated that the cab driver put on the brakes just before entering the intersection, and testified as to the existence of skidding marks on the pavement of Kenwood boulevard before and in the intersection.

The jury in their verdict found that both of the defendants were guilty of negligence proximately contributing to the injuries of the plaintiff, and assessed the damages at $10,000. Other facts will be stated in the opinion.

Lines, Spooner & Quarles, of Milwaukee, Wis., and E. C. Markel, of Philadelphia, Pa., for appellant.

Schmitz, Wild & Gross, of Milwaukee, for respondent Carson.

Olwell & Brady, of Milwaukee, for respondent Leet.

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

[1] It is argued by counsel for the cab company that the proximate cause of the plaintiff's injuries was the negligence of the defendant Leet, that the cab company's driver had the right of way, was not bound to anticipate the danger, and that there was no credible evidence of the appellant's negligence. In addition to the facts already stated there was evidence that at some distance before the intersection one of the passengers in the cab had cautioned the driver to go more slowly. The driver of the cab had a full view of the Leet car for a long distance, and knew that the car was coming at an excessive rate of speed. On cross-examination he swore that it was traveling four times as fast as his own car. There were several inconsistencies and conflicts in his testimony as to the time when he began to slow down his car, and the mode of operating it. From the evidence as to the skidding marks in connection with other testimony that he tried in vain to stop the cab the jury could infer that he was going at a higher rate of speed than he asserted. The fact that the driver had the right of way was undoubtedly an important fact relevant to the question of his negligence. He had the right to presume that the operator of the other car coming from the north would observe the statute as he approached the intersection. But, if using the necessary care, he saw or could have seen that Leet was not obeying the statute, and was thereby liable to cause a collision, the driver of the cab could no longer rely on the presumption, but it was his duty to use such care to avoid danger as the existing circumstances required. If in such a situation one chooses to stand on his assumed legal right and courts obvious danger, he must take the consequences. As said in an opinion by Mr. Chief Justice Winslow:

“The possession of this right does not, of course, justify the possessor in plunging ahead regardless of consequences nor in failure to exercise ordinary care to avoid injury to others, but the fact is an important one to be considered in deciding the question of negligence.” Glatz v. Kroeger Brothers Co., 168 Wis. 635, 170 N. W. 934.

[2] There is an especial reason for applying this rule in the case before us. The defendant was a common carrier and the plaintiff was a passenger. “The duty imposed on common carriers to provide for the safety of passengers is to exercise the highest degree of care reasonably to be expected from human vigilance and foresight in view of the character of the conveyance adopted and consistent with the practical operation of the business.” Dibbert v. Metropolitan Investment Co., 158 Wis. 69, 147 N. W. 3, L. R. A. 1915D, 505, Ann. Cas. 1916E, 924. If the driver of the cab by the exercise of the required degree of care should have discovered that there was danger of a collision at a time when he could stop his car and avoid it, that was his duty, although he had the right of way. On the evidence this was a jury question. There is much argument in the briefs as to the negligence of Leet. We shall not discuss this subject, as the verdict finding his neglect is fully...