Cunnien v. Superior Iron Works Co.

• Decision Date: 18 October 1921
• Citation: 175 Wis. 172,184 N.W. 767
• Parties: CUNNIEN v. SUPERIOR IRON WORKS CO. ET AL.
• Court: Wisconsin Supreme Court

175 Wis. 172

184 N.W. 767

CUNNIEN

v.SUPERIOR IRON WORKS CO. ET AL.

Supreme Court of Wisconsin.

Oct. 18, 1921.

Appeal from Circuit Court, Douglas County; W. R. Foley, Judge.

Action by Edward J. Cunnien against the Superior Iron Works Company and others. Judgment in favor of plaintiff, and both parties appeal. Modified and affirmed.

Ogden avenue is a paved street in the city of Superior, extending north and south, and at the point of the accident is 40 feet wide from curb to curb, and is intersected by Belknap street at right angles, there being on said last-named street a line of street cars.

The plaintiff at the time of the trial, in September, 1920, was 22 years of age, and had been a railroad car seat upholsterer from the time he was 17 years of age until he arrived at the age of 20 years, when he enlisted in the United States navy, in the month of April, 1917. On July 19, 1919, while on a furlough, he came to Superior and aided in assisting a drayman by the name of Young in the moving of his mother's furniture from her former home in the city of Superior to the freight depot. Immediately prior to the happening of the injury, the dray on which the plaintiff and the driver, Young, were seated was returning from the freight yards empty, the dray being driven south on the west side of Ogden avenue, the horse going at a slow trot or walking, up to the point where it stopped, about 10 feet north of the north crossing at the intersection of Belknap street, in order to permit the plaintiff to alight from the wagon. The dray box had sides to it, about 2 feet high, and the seat was elevated about 5 1/2 feet from the street. The driver sat on the right-hand side of the seat, while the plaintiff sat on the left-hand side.

There is very little dispute in the evidence as to the actual facts in the case. The defendant Hayes, who was the president of the defendant company, immediately preceding the accident, was driving a single seated six-cylinder Saxon car, used in the business of the defendant Superior Iron Works Company, south on Ogden avenue, from the Y. M. C. A. building, and when he caught up with the dray, which had stopped as stated, within a distance of about 10 feet from the north crossing of Ogden avenue and Belknap street, turned to the left in order to pass the dray, and thereafter proceeded on his course. Immediately after the dray had been stopped, the plaintiff started to alight therefrom, and in doing so faced the west, and stepped down backwards, first stepping on the tongue of the wagon with one foot, then with the other foot on the hub, and then down onto the pavement. He still clung with his hands to the dray at the time of the accident, and it appears from the evidence that he had alighted on the pavement with only one foot, such foot being a distance of about a foot east of the wagon wheel, the other foot being still on the hub of wheel. While the plaintiff was so alighting, the defendant Hayes was passing around the dray towards the east, and in proceeding along the highway came so close to the dray that his automobile struck the plaintiff, causing him to be thrown upon the pavement, and to sustain the injuries complained of.

It also appears quite conclusively that immediately prior to the happening of the accident the automobile was driven at a rate of speed between seven and eight miles an hour, and that no horn or signal was blown or sounded to attract the attention of the plaintiff or to warn him of the approach of the machine.

The testimony also shows that the plaintiff, prior to the time he attempted to alight from the dray, did not look towards the north in order to discover the approach of an automobile.

After the collision, the automobile of the defendant Hayes swerved off to the left, across Ogden avenue, and stopped close to the east curb. There were no automobiles, excepting the one in question, going along either side of Belknap street, and the evidence shows that there was little traffic at the time in question on either of the streets.

The case was submitted to the jury on a special verdict, and the jury found in its answer to question No. 2 that the defendant Hayes failed to exercise ordinary care in the operation of the automobile as it approached and collided with the plaintiff; and in answer to question No. 3, found that such failure to exercise ordinary care was the proximate cause of plaintiff's injury, and also found that no want of ordinary care on the part of the plaintiff proximately contributed to produce the injury.

The defendants contend: First, that there was no evidence in the case under which they could be found guilty of negligence; and, second, that the evidence in the case conclusively shows that the plaintiff at the time of the happening of the accident, was guilty of contributory negligence, and that therefore defendants' motion for nonsuit or for a direction of a verdict should have been granted, and that after verdict the answer to the question in which it was found that the defendant Hayes was guilty of negligence should have been set aside, and that such answer should have been changed from “Yes” to “No,” and that the answer by which the plaintiff was held to be free from contributory negligence should have been changed from “No” to “Yes”; and that judgment should have been entered in favor of the defendants and against the plaintiff, dismissing plaintiff's complaint, etc.

Pickering & Rieser, of Superior, for appellants.

Dietrich & Dietrich, of Superior, for respondent.

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

[1][2] Did the evidence warrant submission of the question involving defendants' negligence to the jury? The accident happened at about noontime, on a clear day in the month of July. The defendant Hayes, with his automobile, was coming along the west side of Odgen avenue, and from the time that he approached the dray, up to the time of the happening of the accident the dray and the occupants thereof were fully within his view. The machine was driven at a rate of speed of between seven and eight miles per hour, and, assuming that the appliances on the machine were in proper order, the machine was at all times within the easy control of the driver, so that he could readily pursue any course, by either swerving his machine to the left a sufficient distance away from the dray or by stopping it, and thus avoid the accident. It is the duty of a driver of a machine to keep a reasonably careful lookout so that he may be able to avoid a collision, and whether a driver has fulfilled his duty in regard to watching for pedestrians and other persons is generally a question for the jury. Huddy on Automobiles, § 332.

Section 1636--52 of the Statutes, among other things provides:

“Every automobile * * * while being used upon any public highway of this state, shall be provided with efficient brakes and an adequate bell, horn or other signal device.”

The Legislature evidently realized the necessity for enacting a provision requiring the presence of a suitable horn or signal device upon every automobile propelled along the streets in this state, and the only object and purpose which that body could have had in mind in the enactment of such a precaution was to enable the driver of a machine to give a proper warning of his approach under any circumstances, where such warning would be liable to prevent an accident.

It is true that this court has held that there is no rule of law which requires an automobilist to sound his horn in approaching a street intersection. However, that was not intended to convey the idea that the horn or signal device was a useless appliance, but that a warning or signal by use of such horn or device would be necessary in the exercise of reasonable care, wherever there was anticipated danger which could be averted by the giving of a proper timely signal.

[3] Therefore the matter of the negligence of the defendant presented a proper question for the jury, both upon the theory that the defendant Hayes did not keep a proper lookout, and that he did not seasonably, by means of his automobile horn, sound a warning of danger. Furthermore, while going at the rate of seven or eight miles an hour, and under circumstances from which it must be assumed that he had full control of his machine, it is very questionable indeed whether he could not be deemed guilty of negligence, under the circumstances, in driving his machine so close to the dray while passing it, as to leave a space of but one foot between his machine and the wheels of the dray. As stated there was no other vehicle or pedestrian on Ogden avenue; the street was 40 feet wide; the dray stood between 1 and 3 feet from the west curb of Odgen avenue, and there was ample space, even on the west side of the street, for the defendant Hayes to pass the dray, without in any way endangering the plaintiff under the circumstances detailed herein. This also was a proper matter to submit to the jury, under all the facts and circumstances in the case, in order to determine the question of negligence. The question of the negligence of the defendant Hayes, if any, was therefore properly submitted to the jury.

Questions of negligence arising out of automobile accidents are peculiarly for the jury, and will not be decided as a matter of law except under the clearest circumstances. Groeschner v. John Gund Brg. Co., 181 N. W. 212.

What was said in the case of Shortle v. Sheill, 172 Wis. 53, 178 N. W. 304, is strictly applicable to the instant case:

“There is no yardstick by which it may be determined whether any given action amounts to ordinary care. The decision must, of necessity, be a matter of human judgment. This is signally true in automobile accident cases. Whether the conduct of one charged with responsibility for an automobile accident amounts to negligence is in the vast majority of cases a question calling for the exercise of human judgment, and one upon which men are very...