McDonald v. Wickstrand

• Decision Date: 10 November 1931
• Citation: 238 N.W. 820,206 Wis. 58
• Parties: MCDONALD v. WICKSTRAND.
• Court: Wisconsin Supreme Court

206 Wis. 58

238 N.W. 820

MCDONALD

v.WICKSTRAND.

Supreme Court of Wisconsin.

Nov. 10, 1931.

Appeal from a judgment of the Circuit Court for Douglas County; W. R. Foley, Circuit Judge.

Action by James T. McDonald against John Wickstrand. From a judgment against him, defendant appeals.--[By Editorial Staff.]

Affirmed.

In this action begun November 29, 1930, the plaintiff, on March 18, 1931, recovered judgment against the defendant for $750 and costs.

The facts involved, in brief, are: About 8:30 p. m. September 24, 1930, while plaintiff, in the city of Superior, was crossing Banks avenue where Eleventh street intersects it, he was struck by an automobile driven by defendant and was injured. The plaintiff approached Banks avenue from the east on the south side of Eleventh street, and when at the southeast corner of this intersection he looked both to the north and to the south but did not notice any automobiles approaching. He stepped into Banks avenue proceeding west according to his purpose to cross. He was on the regular crosswalk for pedestrians. When he arrived at about the center of the intersection he saw no automobiles. His testimony is: “I crossed Banks Avenue; I looked both ways to see any cars approaching in either direction. I looked both ways before I started out on the street; I looked when I got around to the center of the street and I saw no cars at all. I did not see this car before it struck me and I didn't know where the car came from.”“I started across the street and when I got within about three feet of the west curb I was struck by the automobile and knocked down.”

There is a dispute as to the distance plaintiff was from the west curb when the collision occurred.

The defendant admits failure to notice plaintiff until the automobile was within a few feet from him and so close it was impossible to dodge him completely.

The jury returned a special verdict by which they found that defendant failed to exercise ordinary care as to lookout; the injury to plaintiff was a natural and probable result of such failure; that the defendant ought to have foreseen, etc.; that defendant failed to exercise ordinary care in respect to yielding the right of way to plaintiff; a probable and natural result of such failure was the injury to plaintiff; failure to exercise ordinary care in management and control of the automobile; and the usual proximate cause findings; that plaintiff did not fail to exercise ordinary care for his own safety; and fixed damages at $750.

From the judgment entered thereon March 18, 1931, defendant appeals.Hughes & Anderson, of Superior, for appellant.

Curran & Sher, of Superior, for respondent.

FAIRCHILD, J.

[1] A pedestrian crossing the highway within any marked or unmarked crosswalk at an intersection where the movement of traffic is not being regulated by traffic officers or control signals has the right of way. Section 85.44, Stats., requires the driver of an automobile to yield the right of way to a pedestrian under those circumstances.

The difficulties arising from administering a rule which sought to give the automobile and a pedestrian equal rights at crossings resulted in disadvantages and some misfortune to pedestrians. The rapid movement and the bulk of the automobile, the thoughtlessness of some drivers, and the determination of the traveler on foot, brought conflicts if not collisions which resulted in a feeling that the pedestrian, in the nature of things, ought to have a reasonable...