Egan v. Wege

• Decision Date: 04 December 1951
• Parties: EGAN, v. WEGE et al.
• Court: Wisconsin Supreme Court

Page 457

50 N.W.2d 457

260 Wis. 118

EGAN, v. WEGE et al.

Supreme Court of Wisconsin.

Dec. 4, 1951.

Clifford C. Mullarkey, Clintonville, Benton, Bosser, Becker, Parnell & Fulton, Appleton, for appellant.

W. T. Kuchenberg, James R. Joyce, Appleton, Henry P. Hughes, Oshkosh, of counsel, for respondents.

GEHL, Justice.

We recite here and in the foregoing only such facts as we consider necessary to a determination of the issues presented. We omit reference to testimony bearing upon the condition of the weather and the road and that which concerns the question whether vision through the windows of the Wege car was or was not obscured by mist. It does not appear that these circumstances affected Wege's conduct, or that they had any direct or indirect connection with the collision.

There is ample testimony to support the jury's findings that defendant was causally negligent in operating upon his left side of the highway and in not maintaining a sufficient lookout.

No attack is made upon the finding that plaintiff was guilty of contributory negligence. We do not deem it necessary to consider the claim of plaintiff that the jury was not warranted in finding that he assumed the risk incident to defendant's failure as to lookout and as to wrong side driving, for if the court was in error in changing the answer to the question as to whether he assumed the risk incident to the manner in which defendant controlled and managed his car he is entitled to recover and the judgment must be reversed. State ex rel. Litzen v. Dillett, 242 Wis. 107, 7 N.W.2d 599, 9 N.W.2d 80.

The trial judge concluded that there was no testimony to support the answer and stated also in his memorandum opinion that the question as to whether defendant had been guilty of negligence with respect to his control and management of the car should not have been submitted; that there was no evidence to support an affirmative answer. We do not agree. The defendant once testified that the cars were 150 to 200 feet apart when he first saw Bessett's car and upon another occasion, that they were then 50 feet apart. He was traveling at a speed not to exceed thirty miles per hour. There is no testimony as to the speed of the other car, but from the fact that Bessett was making a turn and the further fact that the impact resulted in but little damage to either of the cars the jury might properly have inferred that it was moving at a moderate rate of speed. Wege testified that if he had applied his brakes with sufficient force he could have stopped his car in time to have avoided the collision. His testimony was that he applied them lightly and turned slightly to his left. The jury might well have concluded that he took no effective steps which in the exercise of ordinary care he might have taken after seeing the Bessett car to avoid the accident. The jury was entitled to believe either of defendant's statements as to the distance the cars were apart when he first saw the other car. Di Benedetto v. Milwaukee R. R. & L. Co., 149 Wis. 566, 136 N.W. 282. Certainly, if the jury believed his testimony that when he first saw the other car they were 150 to 200 feet apart, they were warranted in finding that if he had applied his brakes with sufficient force or had turned to his right the collision would not have occurred. Employers Mut. Liability Ins. Co. v. Derfus, 259 Wis. 489, 49 N.W.2d 400.

'the * * * situation merely presented a contrary state of evidence, and it was within the province of the jury to decide which story was correct.' Swiergul v. Suamico, 204 Wis. 114, 235 N.W. 548, 549.

Defendant contends that the...