Hagen v. Thompson

• Decision Date: 18 November 1947
• Citation: 251 Wis. 484,29 N.W.2d 515
• Parties: HAGEN v. THOMPSON et al.
• Court: Wisconsin Supreme Court

251 Wis. 484

29 N.W.2d 515

HAGEN

v.THOMPSON et al.

Supreme Court of Wisconsin.

Nov. 18, 1947.

Appeal from a judgment of the Circuit Court for Eau Claire County; Clarence E. Rinehard, Judge.

Affirmed.

Action by Ingwald C. Hagen, plaintff, against Berger Thompson and General Accident Fire and Life Assurance Corporation, to recover for injuries sustained by plaintiff, a pedestrian, when struck by an automobile operated by defendant, Thompson. The action was tried to the court and a jury which found Thompson guilty of negligence as to lookout, management and control, and failure to yield the right of way to plaintiff. Plaintiff was found free from contributory negligence and his damages were assessed at $16,153.06. On April 18, 1947, judgment was entered on the verdict and defendants appeal. The material facts will be stated in the opinion.

Stafford & Stafford, of Chippewa Falls, for appellants.

Frank E. Betz and Ramsdell & King, all of Eau Claire, for respondent.

WICKHEM, Justice.

Plaintiff was employed at the United States Rubber plant which was located on Wisconsin Street in Eau Claire. On June 26, 1946, he left his place of employment at 11 o'clock at night to return to his home which was about one block west of the factory and on the south side of the same street. He walked one block to the west and on the north sidewalk of Wisconsin Street to the intersection of Dewey and Wisconsin Streets. He then walked south across Wisconsin Street, turned west and crossed Dewey Street. He was struck by a south bound car driven by defendant, and sustained a badly fractured leg.

Defendant's first contention is that plaintiff was guilty of contributory negligence as a matter of law and that this negligence was as great as that of defendant. We deem this contention to be without merit. Plaintiff testified that he crossed Dewey Street on the crosswalk; that when he was halfway across the street he saw defendant's car approaching some fifty feet north of the intersection which would put it more than one hundred feet away from the crosswalk. His second view of the Thompson car was when the latter was about forty feet away and he was then in its path and within about 8 feet of the curb. Just at that time his attention was diverted to a car parked just south of the restraining line on the west side of Dewey Street. A man was approaching this car with the evident purpose of starting and operating it and plaintiff was afraid that the car might back into his path. He was struck by the right fender of defendant's car, hit on the left leg and he was ultimately picked up some twenty feet south of the crosswalk. There is evidence that plaintiff was not on the crosswalk but to the south of it. It is contended that the physical facts render incredible plaintiff's evidence to the contrary. We deem the contention unsound. Plaintiff's location considerably to the south of the crosswalk is not conclusive and neither is the fact that he was struck on the left leg. We are of the view that there was a jury question whether plaintiff was in the crosswalk. Defendant's car was more than one hundred feet away from him when he was about half way across the street. There is no evidence that the car was coming at such a rate of speed as to give notice of the fact that its driver did not intend to yield the right of way to plaintiff. Its speed was not such as to arouse any particular concern on plaintiff's part as to safety in proceeding. Plaintiff had a right to put considerable reliance at that stage on his right of way as a pedestrian. In McDonald v. Wickstrand, 206 Wis. 58, 238 N.W. 820, 822, this court said:

‘* * * the fact that he has the right of way, coupled with a reasonable observation before entering upon the crossing, are circumstances to be considered by the jury in determining whether or not his conduct is negligent.’

When plaintiff next observed defendant's car it was about forty feet away from him. By that time he was not only in its path but nearly in a position of safety. A jury...