Fessler v. Northwestern Nat. Cas. Co.

• Decision Date: 06 October 1953
• Citation: 265 Wis. 14,60 N.W.2d 387
• Parties: FESSLER, v. NORTHWESTERN NAT. CAS. CO. et al.
• Court: Wisconsin Supreme Court

Page 387

60 N.W.2d 387

265 Wis. 14

FESSLER, v. NORTHWESTERN NAT. CAS. CO. et al.

Supreme Court of Wisconsin.

Oct. 6, 1953.

Rehearing Denied Dec. 1, 1953.

Action by plaintiff Mary Fessler against defendants Frank Braun and Northwestern National Casualty Co., to recover damages for injuries sustained when she was struck by the automobile driven by defendant Braun at the intersection of North Fourth Street and West Hampton Avenue in the city of Milwaukee. From a judgment dismissing plaintiff's complaint upon defendants' motion for a directed verdict, plaintiff appeals. The facts will be stated in the opinion.

E. J. Mueller, Louis C. Ritter, Milwaukee, of counsel, for appellant.

Gold & McCann, Milwaukee, for respondents.

MARTIN, Justice.

West Hampton Avenue is a 28-foot, two-lane street running east and west; North Fourth Street, 20 feet wide, beginning at West Hampton, runs north. At the time of the accident, 7:15 a. m. on February 27, 1948, the pavements were dry; visibility was good; it was not raining or snowing.

Plaintiff had alighted from the front door of an eastbound Hampton Avenue bus at this intersection, crossed the street in front of the bus and was struck by Braun's car, her body coming to rest in the northeast portion of the intersection. Braun had been traveling east on Hampton Avenue.

With respect to the question of lookout, the testimony of the plaintiff is that after she got out of the bus and passed in front of it she looked to the west and saw nothing coming; that she 'kept on walking,' looked to the east and saw no car and 'kept on walking.' She testified that she could see a block or more to the west on Hampton Avenue and about two blocks to the east. She did not see the car that struck her.

There is no evidence that Braun suddenly came out on the left side of the road from behind the bus. His own testimony was that he had traveled for some time at a distance behind the bus and that when it gradually slowed down, pulled toward the right and stopped, he continued in the same line of travel. The only other testimony on this point is that of Henry Seidenschnur who stated that as he drove west on Hampton Avenue east of the intersection he first saw Braun about 200 feet ahead and from that point until the impact occurred Braun drove in a straight line. Since there is no other evidence to controvert it, the conclusion is inescapable that the Braun car was in such a position on the street that plaintiff would have seen it had she looked.

On the basis of her own testimony, therefore, plaintiff was negligent with respect to lookout. A person 'is not permitted to say that he looked, when, if he had looked, he must have seen that which was in plain sight.' Mertens v. Lake Shore Yellow Cab & Transfer Co., 1928, 195 Wis. 646, 648, 218 N.W. 85; Hafemann v. Milwaukee Automobile Ins. Co., 1948, 253 Wis. 540, 34 N.W.2d 809.

With respect to the question of plaintiff's right of way, the testimony is at some variance. Plaintiff could claim the right of way only if it was shown that she crossed Hampton Avenue at the crosswalk. Section 85.44(4), Stats. It was her testimony that the bus stopped, not opposite the west edge of North Fourth Street, but somewhat beyond, east of that point, so that she walked 'about straight over to the northeast corner.' Evelyn Russell, who alighted from the rear door of the bus, testified that the bus stopped approximately in the middle of North Fourth Street. There is evidence in the record, however, that the sidewalk toward which plaintiff was walking was the...