Hustad v. Evetts

• Decision Date: 06 December 1938
• Citation: 282 N.W. 595,230 Wis. 292
• Parties: HUSTAD v. EVETTS et al.
• Court: Wisconsin Supreme Court

230 Wis. 292

282 N.W. 595

HUSTAD

v.EVETTS et al.

Supreme Court of Wisconsin.

Dec. 6, 1938.

Appeal from a judgment of the Circuit Court for Dane County; Alvin C. Reis, Judge.

Reversed.

Action by Milford Hustad against George H. Evetts and another commenced July 29, 1937. From a judgment for the plaintiff entered March 17, 1938, the defendants appeal.

The plaintiff was struck by an automobile driven by the defendant Evetts while alighting from a milk truck from which he was making retail deliveries. He was a route foreman, thirty-three years old, and on the instant trip was directing a co-employee, John Brissee, how to handle the route. The milk truck had doors at the sides which folded back towards the rear and when open extended two or three inches beyond the side of the truck. Both doors were open. One making deliveries stood on the running board or inside the truck and reached for milk bottles. The running board was fifteen inches from the ground. The floor of the truck was even with the running board and slats raised it not more than an inch. In the rear at the top of the truck are four windows, each nine inches wide by fifteen inches high. The plaintiff remembered that the last thing he did before being struck, although he remembered nothing else that occurred just prior, was that he was reaching to get an extra bottle of milk for delivery. Brissee testified that the plaintiff was driving the truck on the trip. Just before the accident he was driving north on Brooks street and had stopped to make deliveries at a court leading off east from the street in the middle of a block. The truck was standing with its right side three to four feet from the east curb of the street, with its front about even with the south curb of the court. The plaintiff directed Brissee to deliver from the right side of the truck six bottles of milk at a residence on the east side of the street a hundred to a hundred twenty feet from the truck. The plaintiff was to deliver from the west side of the truck two bottles of milk at a residence on the west side of the street. When Brissee was returning from making his deliveries and was sixty feet from the truck he saw the plaintiff standing inside the truck facing its rear and reaching as if for a bottle of milk. Brissee's attention was then momentarily directed to watch his step in crossing an icy place in the walk three or four feet wide. Immediately after crossing this ice he looked toward the truck. The plaintiff was then “in the air” and was struck twice in succession by the automobile and rolled to the center of the intersection of the street and court. The plaintiff's body dented the top of the right fender of the truck at its highest point, broke the right side of the glass of the windshield, and made a dent just above the windshield. The automobile stopped about sixty feet beyond the center of the intersection on the left side of the street, with its left wheel near and its rear farther out from the curb. Brissee saw the automobile as it passed the rear of the truck, and estimates its speed at thirty to thirty-five miles per hour, but said that it might have been going no faster than twenty. It was travelling in the direction the truck was headed. A witness testified that he was on the steps of a hospital as the automobile crossed the street on which the hospital faced, and that it was then going forty-five to fifty miles per hour. This street is five hundred feet from the place of the accident. The automobile continued in sight of this witness for two hundred fifty feet and did not reduce its speed within that distance. The automobile passed the truck three or four feet to its left. As the truck was three to four feet from the curb, the left wheels of the automobile were to the left of the center of the street as it passed the truck. The accident occurred about 7:00 a. m. on a clear morning early in March. There was no traffic on the street except the oncoming car, and no cars standing in the street to interfere with vision. The facts above recited are without dispute, except as to the speed of the car. There was undisputed testimony that a pair of skid marks on the surface of the street extended back from the wheels of the automobile where it stopped to points left of the center of the street even with the front of the truck. The defendant's testimony if taken as true would exonerate him from negligence and it is corroborated in every respect by his seatmate and in some respects by other testimony apparently reliable. We do not state this testimony because the evidence as a whole must be construed to uphold the verdict if it reasonably may be. A traffic officer who had made investigation and study of the subject, whose testimony is undisputed, testified that the time that ordinarily elapses between starting to apply automobile brakes and their beginning to take effect is three-quarters of a second, varying with individuals from one-half second to a second. In three-quarters of a second a car at twenty miles per hour will travel twenty-two feet and will stop in eighteen feet after effective brakes begin to take hold, which would give forty feet for travel after starting to apply brakes.

The case was submitted on a special verdict by which the jury found both parties guilty of causative negligence, the defendant in respect to speed, lookout and management, and the plaintiff ...