Elkey v. Elkey
| Decision Date | 12 March 1940 |
| Citation | 234 Wis. 149,290 N.W. 627 |
| Parties | ELKEY v. ELKEY et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Brown County; Henry Graass, Judge.
Reversed.
Action by Mildred Elkey against Edward Elkey and another commenced August 22, 1938. From a judgment dismissing the complaint on the merits entered March 25, 1939, the plaintiff appeals. The facts are stated in the opinion.
North, Bie, Duquaine, Welsh & Trowbridge, of Green Bay (John D. Kehoe and Alex Wilmer, both of Green Bay, of counsel), for appellant.
Everson, Ryan & Hanaway, of Green Bay, for respondents.
The plaintiff was injured when an automobile in which she was riding ran off a bridge across the Fox River in the city of Green Bay and fell sixteen feet onto the ice below. Her husband was driving the car. The plaintiff sues her husband and the carrier of the indemnity insurance on the car to recover for her injuries. The case was tried to a jury who by their special verdict found that the husband in driving the car “at and immediately before the time of the accident” was negligent as to lookout and that the negligence thus found was the proximate cause of the plaintiff'sinjuries. The jury assessed the plaintiff's damages at $1,000. The plaintiff moved for judgment on the verdict. The defendants moved the court to change the finding of the jury as to the husband's negligence as to lookout and as to proximate cause; and for judgment on the amended verdict dismissing the complaint. The defendants' motion was granted.
The jury by their verdict also found that “at the time of and immediately prior to the accident,” the husband did not “drive the automobile to the left over the center line of the roadway”; and did not “operate and manage the automobile without due regard to the traffic, surface, width of the highway and the conditions then existing.”
[1][2]The only question before the court is whether the jury's findings of negligence as to lookout and of proximate cause are sustained by the evidence. If under the evidence reasonable men may differ as to the conclusion of ultimate fact to be drawn from it, the court erred in changing the findings of the jury. We are of the opinion that upon the evidence in the instant case reasonable men may differ, both as to the husband's lookout constituting negligence and as to the causal nature of that negligence. As sustaining that view we here state the evidence in detail. In only one respect is there any material dispute, and in connection with that we are required to adopt the version that tends most strongly to support the jury's conclusions.
[3]The plaintiff sat on the front seat of the car between her husband and her sister. The car was traveling east. The streets were very slippery and the car had skidded in rounding a corner shortly before reaching the bridge. The bridge was uniformly covered with a sheet of ice. It was 10:30 o'clock at night. The street lights shone upon the bridge and made it “look like glass.” The sister remarked just before reaching the bridge that it “looked just like a mirror.” The car was traveling fifteen to twenty miles per hour in its own lane of the bridge and a bus was approaching from the opposite direction in its own lane. No other traffic was on the bridge. The bridge was thirty-eight feet wide between its sidewalks and the sidewalks were eight feet wide. Just before the accident happened the husband inquired the time. The plaintiff fumbled with and looked at her watch trying to see the time and the sister and the husband looked out of the frosted windows of the car trying to see a street clock in front of a store ahead of them to their left. A tight board fence ran along the outer edge of the sidewalk on the north side of the bridge, and the clock barely showed above the top of this fence. The left side window of the car was less frosted than the windshield and the husband was using that to get a better view of the clock. The sister was looking through the windshield. The sister could not see the clock and when she turned her eyes back ahead of the car she saw that it had turned towards the path of the approaching bus. The sister “hollered” at the driver and he “quickly pulled the wheel to the right.” While the husband was looking for the clock the car had traveled two sections of the bridge railing, about forty feet, according to the sister's testimony. When the husband pulled the wheel to the...
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...because he fails to look ahead continually and uninterruptedly. Palombizio v. Murphy, 146 Conn. 352, 150 A.2d 825, 828; Elkey v. Elkey, 234 Wis. 149, 290 N.W. 627, 628, 292 N.W. Safety rules are not hard and fast, nor absolute in application to all circumstances. They are guides to the main......
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