Leckwe v. Ritter

• Citation: 207 Wis. 333,241 N.W. 339
• Parties: LECKWE v. RITTER.
• Decision Date: 08 March 1932
• Court: United States State Supreme Court of Wisconsin

207 Wis. 333

241 N.W. 339

LECKWE

v.RITTER.

Supreme Court of Wisconsin.

March 8, 1932.

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

Action by Thomas Leckwe against Henry R. Ritter. From a judgment in favor of defendant upon a directed verdict, plaintiff appeals.--[By Editorial Staff.]

Reversed, with directions to grant a new trial.

This action was commenced on the 19th day of August, 1930, to recover damages alleged to have been sustained by the plaintiff as a result of being struck by defendant's automobile on the morning of April 22, 1930. At the conclusion of the testimony defendant's motion to direct a verdict in his favor was granted. From a judgment entered on the verdict as directed, the plaintiff appealed.Schubring, Ryan, Clarke & Petersen, of Madison, for appellant.

Edward J. Reynolds, of Madison, for respondent.

NELSON, J.

The sole question is whether the trial court erred in directing a verdict for the defendant. The accident, which resulted in the breaking of the plaintiff's leg, occurred on a highway running north and south in the town of Dunn, in Dane county, on the morning of April 22, 1930. The only witnesses to the accident were the plaintiff, the defendant, and his wife. The plaintiff, just before the accident, was walking in a northerly direction along said highway, and the defendant was driving his automobile in the same direction. The accident occurred about two hundred feet north of the bridge over the Yahara river.

The plaintiff resided on the westerly side of the highway, some considerable distance therefrom. He testified that on the morning in question he left his home intending to go to a neighbor's to do some carpenter work; that he entered the highway at a point about fifty feet north of the bridge, looked to see if any car was approaching, and seeing none turned to the left and started up the road; that he proceeded a distance of about one hundred fifty feet when he was struck by the defendant's car, thrown to the ground, and that the left front wheel of the automobile ran over his right leg near the ankle resulting in its fracture. The plaintiff further testified that the road at the place of the accident was a gravel road about ten to fifteen feet wide; that at the time of the accident he was traveling on the left side of the road about five feet in from the left-hand side or about one-third in on the graveled part of the road. Most of the witnesses for the defendant testified that the graveled portion of the road at the point of the accident was eight to nine feet wide, although no witness seems to have based his estimate upon any measurement.

The defendant testified that on the day in question he was driving his car along the highway in a northerly direction; that he had for some time observed the plaintiff approaching the highway; that as the defendant approached the bridge he saw the plaintiff walking in a northerly direction along the road; that at a point which was concededly about three hundred feet southerly from the place of accident he sounded his horn; that as the plaintiff evidently did not hear the horn he slowed his automobile down to ten miles an hour while crossing the bridge and further reduced his speed after going over the bridge and while approaching the plaintiff; that he did not again sound his horn for the reason that he feared the plaintiff might become startled and jump in front of his car. It was apparent to the defendant and his wife that the plaintiff did not hear the horn. The defendant testified that his rate of speed for at least thirty feet before the accident was such that he could have stopped his car within two feet. The defendant testified that instead of sounding his horn or instead of stopping his car he turned to the right to go around the plaintiff and that at the time of the accident his left wheels were in the right-hand traveled track; that his car did not strike the plaintiff; that, although there was a clearance of two feet between the left side of his car and the plaintiff, the latter whirled and twisted from right to left and fell down upon...