Eichmann v. Buchheit

• Decision Date: 08 May 1906
• Citation: 128 Wis. 385,107 N.W. 325
• Parties: EICHMANN v. BUCHHEIT.
• Court: Wisconsin Supreme Court

128 Wis. 385

107 N.W. 325

EICHMANN

v.BUCHHEIT.

Supreme Court of Wisconsin.

May 8, 1906.

Appeal from Jefferson County Court; George Grimm, Judge.

Action by Gustav Eichmann against Henry Buchheit. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This is an action to recover for personal injuries. The plaintiff's evidence tended to show that on September 30, 1904, at a little after 6 o'clock p. m., he was riding south on Third street in the city of Watertown in a milk wagon drawn by one horse driven by himself; that two other men sat on the same seat with him; and that as he arrived near the intersection of Milwaukee street an automobile, driven by the defendant, approached, going north as a speed of about 10 miles an hour; and that the plaintiff's horse jumped to the right, and the plaintiff fell out of the wagon, striking on his shoulder and injuring him. An ordinance of the city of Watertown was offered in evidence, which provides that no automobile should be driven faster than six miles an hour in the city of Watertown within a radius of half a mile of Main Street Bridge, and should slow down to four miles an hour at crossings. It was also proven that the place where the accident happened was within the prescribed halfmile limit. The defendant denied that he was driving the auto at the time in question, and denied that its speed at that time exceeded four miles an hour, and made the claim that the plaintiff was guilty of contributory negligence. The jury found a general verdict for the plaintiff, and assessed his damages at $321.50, and answered three special questions submitted to them by the court, as follows: “Q. 1. Was the defendant guilty of negligence which caused the injury? A. Yes. Q. 2. What was the proximate cause of the injury? A. High speed and sudden approach of automobile. Q. 3. Was the plaintiff guilty of negligence which contributed to the injury? A. No.”

A motion to set aside the verdict and for a new trial was overruled, and judgment on the verdict was rendered for the plaintiff, and the defendant appealed.Harlow Pease and Gustav Buchheit, for appellant.

R. B. Kirkland, for respondent.

WINSLOW, J. (after stating the facts).

The appellant attacks the validity of the ordinance limiting the speed of automobiles in the city of Watertown, on the ground that it is uncertain and unreasonable; uncertain, because no provision is made for establishing or marking in any way the limits of the district so that the driver will know when he reaches the half-mile radius, and because there is nothing to show whether the word “crossings” means highway crossings or railroad crossings; and unreasonable, because the limit of speed is an unreasonably low rate. In our judgment these objections are not well founded, and we shall devote little time to them. It has generally been deemed wise for cities to limit by ordinance the rate of speed by vehicles upon its streets, in the interest of public safety. We do not deem it necessary for the municipality to erect signs at the city limits or elsewhere to inform the traveler at what point the area of limited speed begins, nor do we think that the word “crossings” can be reasonably considered uncertain in its meaning. The ordinance is an ordinance to regulate the use of automobiles upon the “streets” of the city, and the word crossings plainly refers to street crossings, where the danger resulting from high speed is the greatest. We cannot say that a speed of six miles per hour between crossings and four miles an hour at crossings is unreasonably low.

There are, however, two very palpable errors in the instructions given to the jury which must result in reversal of this case. After charging the jury that the burden of proof was on the plaintiff to convince them by a preponderance of the testimony of the material facts necessary to establish his right of recovery, and that preponderance of the testimony means that testimony which weighs heaviest in their minds, the trial judge proceeded further to say, “If, after a consideration of all the testimony, you are inclined to the opinion that under these instructions of the court the plaintiff is entitled to recover, then the testimony preponderates in his favor, and he has established his claim by a preponderance of the testimony.” It is very evident that by this sentence...