Clemens v. State
| Decision Date | 15 November 1921 |
| Parties | CLEMENS v. STATE. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Error to Municipal Court of Milwaukee County; Chester A. Fowler, Judge.
Bernard Clemens was convicted of manslaughter in the fourth degree, and brings error. Affirmed.C. F. Rouiller, of Milwaukee (W. B. Rubin, of Milwaukee, of counsel), for plaintiff in error.
William J. Morgan, Atty. Gen., and Winfred C. Zabel, Dist. Atty., and George A. Shaughnessy, Asst. Dist. Atty., both of Milwaukee, for the State.
The plaintiff in error was convicted on the 1st day of April, 1920, of the crime of manslaughter in the fourth degree. The case was tried in the municipal court of Milwaukee county before Hon. Chester A. Fowler, judge presiding, and a jury, and the plaintiff in error was sentenced to serve a term of six months in the House of Correction of Milwaukee County. A writ of error was brought to review the conviction of the plaintiff in error on said charge.
On the 28th day of December, 1919, one Theodore Thomas and one William Logeman were returning from the country and were being conveyed in a Ford truck owned by Mr. Thomas, along what is known as the Janesville plank road, running from Hales Corners, a small village located a distance of about 10 miles southwest of the city of Milwaukee, in Milwaukee county, in a northeasterly direction, towards said city. Said Janesville plank road has located thereon a concrete strip 18 feet in width in the center thereof, and on each side of said concrete strip there is a strip of dirt road about 6 feet in width. South of the dirt road a distance of about 9 1/2 feet is a fence, and between the fence and the edge of the dirt road is a gully. Not far distant from Hales Corners, towards Milwaukee, on said plank road, is a hill about three blocks in length, known as Kelly's Hill, sloping from the west towards the east, and the collision in question occurred a distance of about one-half to one-quarter of a mile northeast of the foot of Kelly's Hill, on a portion of the Janesville plank road, which is practically level.
When Thomas, with his truck, arrived at the point of the collision, he stopped his car so that about one-half thereof was located upon the south side of the cement road, and one-half thereof on the dirt road. The stop was made for the purpose of pouring water into the radiator which had become greatly heated, and while Logeman, one of the occupants of the automobile truck, after having filled the radiator with cold water from a can which he took from the rear of the truck, had returned to the rear of the truck, and while facing the east, and while replacing the empty can on the rear of the truck, Thomas was located in front of the truck, engaged in cranking the same, and at this time the collision took place.
It also appears that Clemens was operating a Chandler five-passenger touring car, and was accompanied on his trip by one Hobart.
The collision took place at about five o'clock in the afternoon, at a time when darkness had not yet fully set in, and the testimony shows that even without the aid of artificial light at that time a person could see a considerable distance, there being a dispute in the evidence, some of the witnesses claiming that such distance in which an object could be clearly seen at that time was not to exceed 100 feet, and other witnesses testifying to a considerably greater distance.
Thomas had lit the lights on his automobile when he was about two miles from the place of the accident, and Clemens also claims that his lights had been lit while still some considerable distance from the place of the accident. Clemens and his witnesses testified that the Thomas car when it stopped had no tail light lit, while a number of witnesses for the state testified that the tail light was lit.
It is claimed by Logeman, a witness for the defendant in error, that when the Clemens car collided with the Thomas car it lifted up the rear end and forced it ahead for a distance of from 25 to 30 feet, and that the the Clemens car ran an additional 35 to 50 feet beyond the place where the Thomas car stopped, so that in endeavoring to stop his car at the point of collision, the plaintiff in error continued to run a distance of at least 70 feet before his car was stopped. Thomas was thrown under his truck, and on an examination it was ascertained that he was seriously hurt, and after being conveyed to a nearby saloon, he died shortly after, during the same evening, as the result of pulmonary hemorrhage of the lung, caused by a fractured rib penetrating the same.
The witness Logeman, for the state, testified that the road was pretty good, but slippery in certain places; that he did not know whether the tail light on the Thomas car was lit at the time of the collision; he heard no noise, and no horn or signal, and did not see the Clemens car as it approached; that after the accident Mr. Hobart, who accompanied Mr. Clemens in his car, claimed that he was so blinded by the glaring headlight of the approaching car belonging to Mr. Mueller, coming from the east and going west, that he was unable to see the Thomas car.
J. C. Mueller, a witness for the state, testified that on the evening of the accident he drove a new Ford sedan from the city of Milwaukee out on the Janesville plank road towards Hales Corners; that at the time Mr. Clemens' car approached the Thomas car it was going at about 35 miles an hour; that the first he saw of the Clemens car was when it was at the top of Kelly's Hill, a distance of about one-half a mile from where he then was; all he could see at that time was the lights on the front of the car; that at the time of the happening of the accident he was about 150 feet away from the place where it occurred; that he had put on the dimmers quite a distance before he reached the place where the accident occurred, and at the time when he saw the Clemens car coming down the hill.
Mrs. William Loman, a witness for the state, testified that she was sitting in the rear seat of Mueller's automobile; that when she first saw the Clemens car coming down Kelly's Hill she made the remark to Mr. Mueller, “I would slow down; he is coming very fast;” in her judgment the Clemens car was going at the rate of 35 miles an hour. She also testified that Mueller's dimmers were on; that the Mueller car was going at between 10 and 15 miles an hour; that at the time she first saw the Clemens car the Mueller car was about three-quarters of a mile from it, and she saw the Clemens car and the Thomas car at the same time. The Clemens car was going over twice as fast as the Mueller car.
Mr. Franklin J. Mueller, 14 years of age, a witness for the state, testified that he was in the Mueller car, and that he first noticed the Thomas car at a distance of about eight or nine blocks, and that at that time the Clemens car was over a mile away from where he then was; that Mr. Mueller, his father, turned on the dimmers of his car when he saw the Clemens car coming down the hill.
All of the witnesses for the state testified substantially that after the accident Clemens did everything in his power to aid and assist Thomas.
The plaintiff in error testified in his own behalf that he was 42 years of age, a married man, and had been employed by the Chicago, Milwaukee & St. Paul Railroad for a period of 2 years and 8 months; that he had never been arrested before; that he did not see the red light on the Thomas car, and that there was no red light burning on that car that night, either before or after the accident; that he had green shade lights on his car, and that they were lit; that his headlight threw a light a distance of about 30 to 40 feet; that he had never driven the car before with the headlights in that condition, although he knew they were in that condition that afternoon. He further testified that his car was going at the rate of 15 miles an hour; that, when the collision occurred, the Thomas car was pushed ahead a distance of about 20 feet; that he did not see the Ford truck; it was too dark; that before the accident there was a car coming from the opposite direction from the city, and that he later found out that this was the Mueller car; that the dimmers on the Mueller car were not on, and that the glaring lights from the Mueller car blinded him; that when he approached the Mueller car he turned to the right on the road, slackened down the speed, and put on the brakes; that the reason he turned to the right was to permit the Mueller car to pass; and that at that time the collision took place.
Mr. Hobart, a witness for the plaintiff in error, testified that he was 27 years of age, a traveling salesman, and accompanied Mr. Clemens in his car on the evening of the accident; that immediately before the accident Clemens was operating his car at the rate of between 13 and 16 miles an hour; that he did not see the Thomas car because his sight was blinded by the glaring headlights of the approaching Mueller car; that at the time the Clemens car was stopped it was about even with the Thomas car. At the time of the collision he could not see an object the size of a man in front of him 100 feet away; that when Mr. Clemens saw the bright lights he slackened his speed and turned to the right of the road, and the next thing that the witness noticed was the collision.
The testimony thus detailed shows that there was a sharp conflict between the witnesses for the state and those of the plaintiff in error as to the speed of the Clemens car immediately prior to the happening of the accident, the state's witnesses having testified that such car was running at a rate of speed in excess of 30 miles an hour, and the witnesses for the plaintiff in error testifying that the Clemens car was running at a rate of speed not in excess of 15 miles an hour. The witnesses for the state testified that the Mueller car had, a considerable distance before it reached the Thomas car, its glaring headlights...
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