Lozon v. Leamon Bakery Co.

• Decision Date: 10 February 1925
• Citation: 202 N.W. 296,186 Wis. 84
• Parties: LOZON v. LEAMON BAKERY CO.
• Court: Wisconsin Supreme Court

186 Wis. 84

202 N.W. 296

LOZON

v.LEAMON BAKERY CO.

Supreme Court of Wisconsin.

Feb. 10, 1925.

Appeal from Circuit Court, Douglas County; W. R. Foley, Judge.

Action by C. J. Lozon against the Leamon Bakery Company. Judgment for plaintiff, and defendant appeals. Affirmed.Pickering & Hughes and A. C. Gregg, all of Superior (McMahon, McMahon & Hayes, of Milwaukee, of counsel), for appellant.

Wilson & Wilson, of Superior, for respondent.

JONES, J.

The plaintiff, while driving his Oldsmobile sedan in a northerly direction on East Second street, collided with the truck of the defendant company, which was being driven in an easterly direction on Cass avenue, at the intersection of the two streets in the city of Superior, Wis. The collision occurred at about 10 o'clock in the forenoon of January 10, 1923. There was a small amount of snow upon the pavement of the streets in question, but not enough to cause skidding.

The plaintiff testified that he was driving his automobile, in which he was transporting two passengers for hire, at a rate of about 15 miles an hour, but that, as he approached the railroad track, which crosses East Second about 60 feet south of the intersection, he slowed down to 10 miles an hour; that at the time he crossed the railroad tracks he looked both to the left and to the right, but that he looked only to the right after passing the tracks, as the traffic from that side was generally the heaviest, and he had not seen any automobiles on Cass avenue when he looked to the left before crossing the railroad tracks; that he heard no warning signal of any kind, and did not see the defendant's truck until he was more than half way across Cass avenue at the intersection, when he suddenly became aware of the truck upon his immediate left; that his car was struck amidships by the front of the truck, and that he at once put on the brakes, stopping the forward movement of his car, but that the force of the truck pushed the Oldsmobile sideways against the telephone pole on the northeast corner of the intersection; that the collision took place in the northeast portion of the intersection after he had more than half crossed Cass avenue.

Olga Ronning, one of the passengers in the plaintiff's car, testified that the speed of the plaintiff's car was about 10 miles an hour at the time of the accident; that he had been struck by the truck of the defendant after passing more than half way across Cass avenue. William St. George, the other passenger, testified that the speed of the car was about 10 miles an hour at the time of the accident; that he had seen the defendant's truck moving towards the intersection while about 200 feet away from the intersection, and had then noticed it again just before it entered the intersection; that he warned the plaintiff as to the approach of the truck, but received no response from the plaintiff; that the front of the truck struck the sedan amidships after the sedan had more than half crossed Cass avenue; that the truck was moving at a fast rate of speed upon the left side of Cass avenue about 8 feet from the ourbing. One George Cole, who was in the pool hall on the northwest corner of the intersection, testified that he saw the truck just before the collision, and while it traveled about 10 feet; that it was going about 20 or 25 miles an hour; that the truck was on the left side of the street about 8 feet from the curbing when it entered the intersection; that he did not see the actual collision, but heard it, and hurried out to see the truck facing the northwest, and the Oldsmobile against a telephone pole on the northeast corner of the intersection; that he thought the driver of the truck was changing gears when he entered the intersection, as he was looking down into the truck.

The driver of the defendant's truck testified that he had stopped his car on the left side of Cass avenue facing west to make a delivery, and then had turned around and proceeded towards the intersection on the right side of the street at about 10 miles an hour; that he was in second gear, and that the truck could not go over 12 miles an hour in second gear; that while about 70 feet away from the intersection he had looked to his right, and had seen no car approaching on East Second street; that he could see as far as the trestle of the Great Northern Railroad, which was about two hundred feet from the intersection; that he had then looked to the left and watched the approach of an automobile from that direction and that when he saw that this car was going to stop he glanced to the right again just as he started into the intersection; that he saw the plaintiff's car upon his immediate right, and that before he could stop, the plaintiff's car swerved a little and collided with his right front fender, forcing the truck around, and that the plaintiff's car was shunted off against the telephone pole; that he did not strike the plaintiff's car with the front of the truck, and that only the steering rod and the right front fender of his car were in the least injured; that the collision took place in the southeast portion of the intersection, and that after the collision his car was in the middle of East Second street, and on the north side of Cass avenue, facing the northwest corner of the intersection, while the plaintiff's car was in the northeast corner.

It is one of the main contentions of the defendant's counsel that the court erred in failing to find that the plaintiff was guilty of contributory negligence as a matter of law. The finding of the jury that the defendant was negligent is not questioned. No claim is made that the plaintiff was traveling at an excessive rate of speed, and it is conceded that he had the right of way. But it is argued that there was no obstruction to his view, and that if he had looked to his left at a distance of 60 feet from the center of the intersection, or when he was 75 or 80 feet from the point of the collision, he would have seen the defendant's truck, and could have avoided the accident. The plaintiff testified that before reaching the railroad he had looked to the left and to the right, and in this he was corroborated by the witness St. George; and that he saw no car on Cass avenue and that he heard no warning from St. George; that when he reached the railroad track he looked to the left and saw nothing moving on Cass avenue. As he reached the railroad track it would be natural that he should look for trains, and, as he approached the intersection, that he should look more particularly to the right for cars on Cass avenue coming from the east and having the right of way. Two witnesses beside the plaintiff testified that the defendant's truck came along Cass avenue and into the intersection on the wrong side of the street, and that the collision took place when the plaintiff's car had passed over two-thirds or three-fourths of the distance across the intersection.

[1][2] Despite the claim of the defendant's counsel that the truck could not be driven more that 12 miles an hour, two witnesses testified that it was going at an estimated rate of 25 miles an hour. It is argued by the plaintiff's counsel that the plaintiff had made a proper lookout before reaching the railroad track, and from that point it was of first importance to watch for trains, and for cars on Cass avenue, which would have the right of way. There is undoubtedly force in the claim of defendan...