McCaffrey v. Auto. Liab. Co.

• Decision Date: 07 February 1922
• Citation: 186 N.W. 585,176 Wis. 230
• Parties: MCCAFFREY v. AUTOMOBILE LIABILITY CO., LIMITED, MUTUAL, ET AL.
• Court: Wisconsin Supreme Court

176 Wis. 230

186 N.W. 585

MCCAFFREY

v.AUTOMOBILE LIABILITY CO., LIMITED, MUTUAL, ET AL.

Supreme Court of Wisconsin.

Feb. 7, 1922.

Appeal from Circuit Court, Milwaukee County; W. B. Quinlan, Judge.

Action by Katherine McCaffrey against the Automobile Liability Company, Limited, Mutual, and another. Judgment of dismissal, and plaintiff appeals. Affirmed.

This is an appeal by the plaintiff from a judgment entered in the circuit court of Milwaukee county, Hon. W. B. Quinlan, judge presiding, reversing the judgment of the civil court of Milwaukee county, and entering judgment for defendants, dismissing the complaint upon its merits.

The defendant Schissler at the time of the happening of the injury was the owner and operator of a Ford jitney in the city of Milwaukee, having complied with the provisions of sections 1797--62 to 1797--68 of the Statutes, and the Automobile Liability Company, Limited, Mutual was the carrier insurer.

Lloyd and Twelfth streets are two public streets in the city of Milwaukee, and intersect each other at right angles, Lloyd street running east and west, and Twelfth street running north and south. There are two street car tracks on Twelfth street. While the defendant Schissler was operating his car in which the plaintiff was a passenger north on the east side of Twelfth street, so that the wheels of his car were straddling the east rail of the east car track, and when he arrived at or about the south crosswalk of Lloyd street, an automobile approached from the west crosswalk of Twelfth street, and simultaneously a truck being driven south on the west side of Twelfth street arrived at or about the north crosswalk of Lloyd street. Schissler's car at the time was going somewhat in excess of 15 miles per hour, and, after having passed the crosswalk with his rear wheels, Schissler looked towards the east to observe the traffic from that direction and, seeing no vehicle approaching, immediately looked towards the west, and there observed the automobile coming from that direction. In order to avoid any possible collision, he swerved his car first towards the east, and then continued a short distance towards the north, and thereafter realizing that the car coming from the west was dangerously approaching, he put on additional speed and drove his car towards the northeast corner of the intersection of the two streets named, and, after having passed in part the intersection, the automobile coming from the west after havingbarely escaped a collision with the truck, swerved towards the northeast and collided with the rear wheels of Schissler's car at the northeast corner of the intersection, causing Schissler's car to be upset, as the result of which collision the plaintiff sustained the injuries complained of.

The action was originally tried in the civil court of Milwaukee county before a jury, and a special verdict was rendered, in which it was found: (1) That Schissler failed to exercise ordinary care in the management and operation of his car at and just previous to the collision; (2) that such failure was the proximate cause of plaintiff's injury. Thereupon the usual motions were made by the defendants, which motions were denied, and judgment was thereupon entered in favor of the plaintiff for the amount of the damages assessed and costs, from which judgment the defendants appealed to the circuit court of Milwaukee county. The circuit court reversed the judgment of the civil court, and ordered judgment in favor of the defendants, dismissing the complaint, from which judgment this appeal was taken to this court.

Raymond J. Cannon, Cannon, Waldron & Schweichler, and M. L. Lueck, all of Milwaukee, for appellant.

J. Elmer Lehr, of Milwaukee, for respondents.

DOERFLER, J. (after stating the facts as above).

[1] Schissler being a common carrier, and the plaintiff being a passenger in his car, the law applicable in cases of that kind with respect to common carriers, as laid down by this court, governs the degree of care which he was required to exercise. It has been held that--

“The duty imposed on common carriers to provide for the safety of passengers is to exercise the highest degree of care reasonably to be expected...