Lloyd v. Pugh
| Decision Date | 27 October 1914 |
| Parties | LLOYD v. PUGH. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Racine County; E. B. Belden, Judge.
Action by Eva L. Lloyd against William H. Pugh. Judgment for plaintiff, and defendant appeals. Reversed, with directions to dismiss complaint.
This is an action to recover damages for personal injuries sustained by the plaintiff by reason of a collision between a single buggy in which she was riding and the tongue of a coal wagon. The jury found the defendant negligent and the plaintiff free from contributory negligence, and assessed plaintiff's damages at $500. From a judgment entered on this verdict defendant appeals. The defendant contends that the court should have held as a matter of law that defendant was not negligent, and that plaintiff was guilty of contributory negligence, also that the damages recovered were excessive, and that errors committed in rulings on evidence and in instructions given to the jury, and in refusing to instruct as requested, resulted in a mistrial in any event.
State street in the city of Racine runs east and west. The northerly end of Ontario street ends at State street, and it extends from State street in a direction somewhat south of southeast. The collision took place a little to the north of the intersection. The plaintiff was proceeding east on the south side of State street about midway between the south rail of the street car track and the curb. The distance between these two points is 19 feet. She intended to turn south on Ontario street and veered somewhat to the north for the purpose of making the turn. She observed the coal wagon on Ontario street aproaching State street, and concluded that it was in such a position that she could not pass it, so she decided to proceed east along State street. It does not appear that at any time she approached the street car track close enough to collide with a car. Before swerving to the north, she looked back and saw a street car some distance back of her and west of the tracks of the Chicago, Milwaukee & St. Paul Railway Company. She knew that the car stopped before crossing the railroad tracks, and that the conductor went ahead to see that the track was clear. She testified that she did not swerve farther to the north when passing in front of the coal team, because of the car which she saw behind her. She really gave no explanation as to why she did not stop to let the coal team go by. She was an experienced driver, and her horse was perfectly gentle and not afraid of street cars. There was some evidence that she speeded up her horse, but this she denies, although she did not deny that she slapped it with the lines as she was about to pass. Aside from the street car, the coal wagon and plaintiff's buggy, there were no other vehicles in the vicinity of the collision, and there is no evidence tending to show where the street car was at that time. There was a building on the corner at the intersection of the south line of State street and the westerly line of Ontario street. The corner of the building was cut away, however, and the sidewalks were quite wide, and there was nothing to prevent either of the parties from seeing the other in time to prevent a collision. Ontario street is paved with brick. The upgrade in approaching State street is substantial and is greater on the east side of the street than on the west. On the east side there is a raise of about 21 inches in 31 feet, and of 3.56 feet in 84 feet. The corresponding raises on the west line of the street are 1.2 feet and 2.36 feet.
The curb line on the west intersection of the southwest line of Ontario street with the south line of State street is 2.5 feet lower than the point where the east curb line of Ontario street intersects the south line of State street. The distance between the curb lines of Ontario street is 38.5 feet. There is a fall to the west on Ontario street of 2.8 feet in a distance of 38.5 feet. At a point 84 feet south of the State street intersection it is substantially a foot lower on the west than on the east side of the street. There is evidence which warranted the jury in finding that at the time of the collision the defendant's horses were somewhat to the west of the center line of Ontario street and headed in a northwesterly direction. The elevation of the crown of Ontario street at the point of intersection with State street is eight inches higher than the west gutter and 1.3 feet higher than the edge of the east sidewalk. The crosswalk is brick. In the center the elevation of the south line of State street is practically the same as the elevation of the center of the crosswalk. From the gutter line of State street to the center line of Ontario street the fall is about 3 1/4 inches.
It is undisputed that Ontario street was somewhat slippery; that the coal wagon and the coal therein weighed five tons or more; that it was a hard pull for the team to make the ascent, and that it was proceeding very slowly. The plaintiff and another witness testified that the driver was holding his lines loosely, and that he apparently made no attempt to stop the team. The driver testified on his examination under section 4096 that he did not change his...
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