Edwards v. Kohn

• Decision Date: 08 March 1932
• Citation: 207 Wis. 381,241 N.W. 331
• Parties: EDWARDS v. KOHN ET AL.
• Court: Wisconsin Supreme Court

207 Wis. 381

241 N.W. 331

EDWARDS

v.KOHN ET AL.

Supreme Court of Wisconsin.

March 8, 1932.

Appeal from a judgment of the County Court of Jefferson County; L. L. Darling, Judge.

Affirmed.

Action by Louise Edwards, plaintiff, commenced on the 24th day of February, 1931, against the defendants Charles A. Kohn and Edward Kohn, to recover damages for personal injuries sustained by reason of an automobile accident. From a judgment in favor of the plaintiff and against the defendant, entered on the 3d day of July, 1931, the defendants appeal.Stephens, Sletteland & Sutherland and A. E. Kilmer, all of Madison, for appellants.

Grady & Dakin, of Watertown, for respondent.

OWEN, J.

At about 7 o'clock p. m., on the 15th day of November, 1930, the plaintiff was struck by the automobile of the defendant Charles A. Kohn, while it was being driven by the defendant Edward Kohn, son of the defendant Charles A. Kohn, as she was crossing Main street in the city of Watertown. The evidence discloses that the plaintiff was on the north side of Main street, and that upon her arrival at the northeast corner of the intersection of Main street with Water street, she proceeded south across Main street upon the regular crossing, which was distinguished by parallel lines about eleven feet apart. In the center of the street, and within these parallel lines, was another rectangle marked off by parallel lines about four feet apart, to indicate a safety zone. The plaintiff testified that before proceeding to cross Main street, she looked both east and west for on-coming traffic, but saw no automobiles approaching in either direction. She further testified that upon her arrival at the so-called safety zone, she took another observation, saw no automobile approaching from the west, and proceeded on across the street. Before she reached the southerly curb line of Main street she was struck by the defendants' automobile.

The defendant Edward Kohn, the driver of the automobile, testified that he saw the plaintiff start across the street when he was in the center of Water street; that it was a rainy night, the visibility was poor, and the street wet and slippery; that he was driving about twenty miles an hour; that the window on the left-hand side of the car was open, and he “hollered” at the plaintiff to warn her of his approach; that he was unable to stop the car, owing to the slippery condition of the walk; that she proceeded in front of him, and she was struck by the left-hand fender of his car.

The jury found negligence on the part of the defendants and freedom from contributory negligence on the part of the plaintiff. Judgment went in favor of the plaintiff, from which the defendants bring this appeal.

[1] The principal contention relied upon for reversal is that the undisputed evidence reveals freedom from negligence on the part of the defendant Edward Kohn, and contributory negligence on the part of the plaintiff as a matter of law. The plaintiff testified that she looked before she started across the street. She also testified that she looked after reaching the safety zone in the center of the street, and failed to discover the approach of the defendants' car. The testimony relied upon to impeach her testimony in this respect is the testimony of the defendant Edward Kohn, who testifies that when he first saw her, he was in the center of Water street, driving at about twenty miles per hour, from which it is concluded that if she had looked efficiently she could not have failed to discover the approach of the defendants' car. In other words, it is claimed that her testimony that she looked is refuted by the physical facts in the case, and that she will not be heard to say that she looked when it conclusively appears that if she had looked she would have seen that which was in plain sight.

The difficulty with this contention is that the only evidence as to the location of defendants' car, when the plaintiff started across the street, is the testimony of the defendant Edward Kohn. That his testimony is inaccurate, to say the least, is demonstrable. He states that he was in the center of Water street when the plaintiff left the curb on the north side of Main street. Main street is fifty feet wide, and Water street is thirty-seven and seven-tenths feet wide. Plaintiff was struck when she was somewhere on the south side of Main street, and from the time she left the curb she traveled more than twenty-five feet before she was struck. According to the testimony of Edward, he was in the center of Water street when she left the curb. If so, he traveled less than twenty feet from the time plaintiff left the curb until the accident occurred. According to his own testimony, he was driving at the rate of twenty miles per hour. Under these circumstances it would be physically impossible for the plaintiff and the defendant to reach the place of the accident at the same time. In order to accomplish this, it was necessary for the plaintiff, an old lady seventy-three years of age, to walk in excess of twenty miles per hour. The jury had a perfect right to disbelieve this testimony. With this testimony out of the case, there is no evidence to indicate where the defendants' car was when plaintiff took her observation, either at the time of leaving the curb or at the time of reaching the safety zone, and we do not have a situation compelling the conclusion that if plaintiff had looked she would have discovered the approach of the defendants' car. Where the car was, depended in great measure upon the rate of speed at which it was coming. While the only express testimony in the case is that it was coming at the rate of twenty miles per hour, the jury were not obliged, under the circumstances, to accept this estimate as conclusive. We consider that the evidence presented a clear jury question upon the merits of the case.

Numerous procedural errors are assigned, all of which have been considered. We will mention those appearing worthy of treatment.

[2] The case was submitted to the jury in the form of a special verdict. Question 7 was: “Did the plaintiff Louise Edwards have the right of way across the highway at the time and place in question?” And question 8 was: “If you answer the Seventh question in the affirmative then answer this: Did the defendant Edward Kohn fail to yield to the plaintiff Louise Edwards the right of way to which she was entitled?” The jury found that the plaintiff had the right of way, which the defendant Edward failed to yield. It is claimed that the eighth question should have been: “Did the defendant Edward Kohn fail to exercise such care as the great mass of mankind ordinarily...