Knutson v. Stangl

• Decision Date: 18 June 1928
• Citation: 220 N.W. 375,196 Wis. 334
• Parties: KNUTSON v. STANGL.
• Court: Wisconsin Supreme Court

196 Wis. 334

220 N.W. 375

KNUTSON

v.STANGL.

Supreme Court of Wisconsin.

June 18, 1928.

Appeal from a judgment of the Circuit Court for La Crosse County; R. S. Cowie, Circuit Judge. Reversed as to damages only.

Action by Samuel Knutson against Lillie Stangl. Judgment for the plaintiff, and the defendant appeals. Affirmed except as to damages, and remanded, with directions for new trial on question of damages.--[By Editorial staff.]

The plaintiff, by this action commenced March 22, 1927, sues to recover for personal injuries in being struck by defendant's automobile April 5, 1925. Trial was had May 23d, and a verdict in favor of the plaintiff, and judgment thereupon for $3,500 damages and costs on June 28, 1927, and defendant appeals.

The defendant was driving her Overland coupé sedan in La Crosse north on Third street, in the center of which was a single street car track, at about 11 p. m. Plaintiff, 35 years old, was walking westerly across Third street from the northeast corner of its intersection with Vine street, which crossed at right angles. It was 21 feet from the sidewalk curb to the first rail of the car tracks. When he was either at, or within 2 or 3 feet to, the east of the easterly of the rails he was knocked over by the front end of defendant's automobile and his cap found on its radiator. The automobile continued on to the north from 30 to 100 feet, and stopped at the easterly curb.

By special verdict, the jury found that the defendant was wanting in the exercise of ordinary care, with respect to speed at which she was then driving, and with respect to keeping a proper lookout, but not so with respect to sounding the horn or giving other signal of her approach; that such want of ordinary care on defendant's part was a proximate cause of plaintiff's injury; that there was no want of ordinary care on plaintiff's part proximately contributing; and assessed damages at $3,500. After motions by the respective parties, the court ordered judgment in plaintiff's favor.George H. Gordon and Law & Gordon, all of La Crosse, for appellant.

A. C. Wolfe, of La Crosse, for respondent.

ESCHWEILER, J.

[1][2] The defendant here contends that the evidence is insufficient to support the jury's finding of negligence in any respect by the defendant, and also requires a finding, as a matter of law, that there was contributory negligence by the plaintiff.

We think both of such questions were proper matters for consideration by the jury, and that the result so reached and as confirmed by the trial court cannot be here disturbed. Under defendant's own testimony, and that of her sister riding with her, they did not see the plaintiff until they were less than 6 feet away from him. The street was clear, and nothing to interfere with their vision of this highway crossing which plaintiff was using at the customary place and in the usual manner. Under plaintiff's testimony, he had already crossed the easterly of the tracks in the center of Third street, and, according to defendant's testimony, he was 2 or 3 feet to the east thereof at the time of the collision. He must therefore have proceeded some distance while clearly within the field of observation of the defendant approaching from the south.

The question of plaintiff's contributory negligence is a close one. He, however, testified that he made an observation just before stepping off from the curbing and saw...