Mahar v. Lochen

• Decision Date: 23 October 1917
• Citation: 164 N.W. 847,166 Wis. 152
• Parties: MAHAR v. LOCHEN ET AL.
• Court: Wisconsin Supreme Court

166 Wis. 152

164 N.W. 847

MAHAR

v.LOCHEN ET AL.

Supreme Court of Wisconsin.

Oct. 23, 1917.

Appeal from the Circuit Court for Milwaukee County; E. T. Fairchild, Circuit Judge. Affirmed.

Action for damages on the ground of negligence.

The cause was tried before the Civil Court for Milwaukee County.

The evidence disclosed this: August 16th, 1916, defendants' servant, in the course of his employment, drove a four horse team of horses, drawing a heavy truck, loaded with iron beams forty feet long, east on Oneida Street, in the City of Milwaukee. He was going about three miles per hour, driving on the right hand track of double street railway tracks, and near the center of the street, instead of as close as practicable to the right hand curb, as he should have done. The iron beams extended back of the hind truck some twelve feet. Plaintiff's daughter, driving his automobile about eight or ten miles per hour, approached the truck load from the rear. She seasonably signalled her desire to pass but the driver paid no attention thereto. Under the circumstances, it did not seem to her best to pass on the left on account of the street railway track and the regular street traffic, which was considerable. Automobiles were freely passing the truck load on the right and she took that course. Though there was an automobile standing at the curb on that side, there was ample room left to pass. As she reached a point about opposite the standing automobile, and alongside the truck load, the driver turned his horses to the left to pass into a cross street. That caused the rear end of his load to swing to the right, striking plaintiff's machine and causing the damages complained of.

The cause was submitted to the jury, resulting in findings to this effect: The truck was not kept as close as possible to the curb line on the right. There was no want of ordinary care in failing to do so. Defendant's servant failed to give any signal of his intention to turn into the cross street. In the exercise of ordinary care he ought to have done so. His failure in that regard was the proximate cause of the collision. There was no want of ordinary care on the part of the driver of the automobile in attempting to pass the truck on the right, nor any want of ordinary care on her part in operating the machine which proximately contributed to the collision. Plaintiff was damaged thereby to the amount of two hundred dollars.

Notwithstanding the verdict, judgment was rendered in defendants' favor upon the ground that plaintiff's daughter was guilty of contributory negligence as a matter of law.

On appeal to the Circuit Court the judgment was reversed and judgment was rendered in plaintiff's favor as...