Mertens v. Lake Shore Yellow Cab & Transfer Co.

• Decision Date: 08 May 1928
• Citation: 195 Wis. 646,218 N.W. 85
• Parties: MERTENS v. LAKE SHORE YELLOW CAB & TRANSFER CO.
• Court: Wisconsin Supreme Court

195 Wis. 646

218 N.W. 85

MERTENS

v.LAKE SHORE YELLOW CAB & TRANSFER CO.

Supreme Court of Wisconsin.

May 8, 1928.

Appeal from a judgment of the Circuit Court for Racine County; E. B. Belden, Circuit Judge. Reversed.

Action by William B. Mertens against the Lake Shore Yellow Cab & Transfer Company to recover damages for personal injuries sustained by being struck with one of defendant's yellow cabs on the street. From a judgment in favor of plaintiff, defendant appeals.Roy S. Stephenson and Clarence J. Fisher, both of Kenosha, for appellant.

Foley, Brach & Colbert, of Racine, for respondent.

OWEN, J.

Sixth street in the city of Racine extends in an easterly and westerly direction. On said street there is a bridge, commonly known as West Sixth Street bridge, 152.4 feet in length. The street is 36 feet between curbs. The bridge is 17.6 feet between the girders. The cement sidewalk ends 13 feet from the end of the bridge. A wooden walk then extends obliquely from the end of the cement walk to a wooden walk across the bridge.

On the 15th day of September, 1925, plaintiff was shopping in a store located on the south side of Sixth street and at the east end of the bridge. The west side of this store building was flush with the west end of the concrete walk on the south side of Sixth street, at the east end of the bridge. Having completed his errand, the plaintiff came out of the store at 4 o'clock in the afternoon, and proceeded hurriedly towards his home, which is west and north of the bridge. He proceeded in a northeasterly direction, intending to cross the street before reaching the bridge, and proceed across the bridge on the north side thereof. From the door of the store to the end of the bridge is in the neighborhood of 35 feet. Just before reaching the bridge, he stepped from the oblique walk, intending to cross the street. He states that just as he came even with the south girder of the bridge he looked in a westerly direction, and saw no automobile coming. At this point he had a clear vision to the west for a distance of more than 250 feet. He then proceeded to cross the street, and, when he had gone a distance of not to exceed 12 feet, he was struck by defendant's Yellow cab. He testified that he was walking between 3 1/2 and 4 miles per hour. The question presented is whether he was quilty of contributory negligence.

[1] It is apparent that, if he had looked when he came flush with the girder of the bridge, he was in the exercise of that degree of care which the law requires. But it is also apparent that, if he had looked, he would have seen the cab coming. He had a clear vision for more than 250 feet. He was struck within 12 feet from the point where he testified he made his observation. Unless the cab was going more than 20 times as fast as the plaintiff, it was within the range of his vision when he claims he looked. There is nothing in the record to indicate or to justify an inference that the cab was approaching at any such speed. This court has held many times that such a situation does not present a jury question. Under such circumstances, a person is presumed not to have looked, or to have heedlessly submitted himself to the danger. He is not permitted to say that he looked, when, if he had looked, he must have seen that which was in plain sight. Cawley v. La Crosse City Ry. Co., 101 Wis. 145, 77 N. W. 179;White v. Chicago & N. W. Ry. Co., 102 Wis. 489, 78 N. W. 585;White v. Minneapolis, St. P. & S. S. M. R. Co., 147 Wis. 141, 133 N. W. 148. Plaintiff must therefore be held to have been guilty of contributory negligence, unless he can be relieved therefrom by the fact...