First Wis. Trust Co. v. Schmidt
Decision Date | 11 January 1921 |
Citation | 180 N.W. 832,173 Wis. 477 |
Parties | FIRST WISCONSIN TRUST CO. v. SCHMIDT. |
Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Milwaukee County; Edward T. Fairchild, Judge.
Action by the First Wisconsin Trust Company, as executor of the estate of Alvina Schilke, deceased, against Peter Schmidt. Judgment for plaintiff, and defendant appeals. Modified and affirmed.
Personal injury. This action is brought by the executor of the estate of Alvina Schilke, widow, to recover damages for personal ininjuries sustained by her and for her death resulting therefrom. The jury found, first, that defendant's automobile was, at and immediately prior to the accident, being run at a greater rate of speed than was reasonable and proper, having regard to the width, traffic upon, and use of Twelfth street in the vicinity of the accident; second, that such rate of speed was the proximate cause of the injury to the deceased; third, that the deceased was not guilty of contributory negligence; fourth, awarded damages for pain and suffering, $750; and, fifth, awarded damages for pecuniary loss sustained by the children of the deceased $2,250. There were the usual motions on the part of the defendant. The trial court denied all the motions, except that an order was entered granting a new trial, unless the plaintiff consented to remit the sum of $750 from the amount awarded as pecuniary damages sustained by the children of deceased. The plaintiff elected to make the remission. Judgment was entered for $2,250 and the further sum of $458.02, being $407.50 paid out for medical care and funeral expenses, with interest. From the judgment so entered, the defendant appeals.
Lines, Spooner & Quarles, of Milwaukee, for appellant.
Clarence W. Bradford and Edgar L. Wood, both of Milwaukee, for respondent.
ROSENBERRY, J. (after stating the facts as above).
Twelfth street, in the city of Milwaukee, runs north and south, and intersects Prairie and Chestnut streets, running east and west, at right angles; Chestnut street being one block north of Prairie street. Between 7:30 and 8 o'clock on the evening of December 7, 1917, the defendant was driving his automobile south on Twelfth street. It was a clear moonlight night. The headlights on the defendant's automobile were burning. On Twelfth street there are two car lines; the north-bound cars running upon the easterly tracks, and the south-bound cars running upon the westerly tracks. The deceased lived at 1222 Prairie street, between Twelfth and Thirteenth streets, and west of Twelfth street. She had alighted from a north-bound street car, which had stopped at the usual stopping place on the northeast corner of Twelfth and Prairie streets, and while crossing Twelfth street from east to west to go to her home was struck by defendant's automobile, which he was driving south on Twelfth street on the west side of the street.
There were with the defendant in his automobile at the time of the accident Miss Jungkert, Mrs. Triebel, Mrs. Toat, and Mrs. Amt. As the defendant drove across Chestnut street, he saw the street car stop at the usual stopping place at the northeast corner of Twelfth and Prairie streets. The street car then started up, and met defendant's automobile about midway between Prairie and Chestnut streets. When the defendant's automobile passed the north-bound street car, defendant saw the deceased at the corner of Twelfth and Prairie streets, on the east side of the street. It is the contention of the defendant that he slowed down his automobile until within a distance of 13 or 14 feet from deceased, when deceased stopped, indicating that she wished him to pass; his language being:
“I was positive sure that the lady wanted to let me pass by.”
It is the contention of the defendant that the deceased darted in front of his car; that he then attempted to turn to the left, although his testimony upon this point is confusing; that she was struck by the edge of the right or westerly fender. Had the deceased gone a few inches farther, the accident would have been avoided. There is considerable conflict in the evidence as to the location of the body after the accident. The defendant fixes it at a point near the north curb of Prairie street, other witnesses place it at a point near the south curb of Prairie street, some 10 or 12 feet west of the west line of Twelfth street.
[1] It is the contention of the defendant upon this appeal that the rate of speed at which the defendant was driving his car was not the proximate cause of the accident; that the proximate cause was the unexpected, swift movement of the deceased in attempting to pass ahead of the automobile after indicating that she intended to wait until the automobile had passed her. The defendant cites Burnham v. Norton, 100 Wis. 8, 75 N. W. 304,Marchand v. Bellin, 158 Wis. 184, 147 N. W. 1033, and Johnson v. Ætna Life Ins. Co., 158 Wis. 56, 147 N. W. 32, Ann. Cas. 1916E, 603, to the proposition that the undisputed, reasonable evidence of one witness, though a party to the action, should have controlling weight in determining a question of fact.
We do not think the cases cited are applicable to the situation presented by the facts in this case. While no witness denied the statements of defendant, there was much evidence that tended to dispute the testimony of the defendant. Many facts and circumstances appearing in the case do not accord with defendant's testimony. There was a conflict in the...
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