Murray v. Yellow Cab Co.

• Decision Date: 03 April 1923
• Citation: 180 Wis. 314,192 N.W. 1021
• Parties: MURRAY v. YELLOW CAB CO.
• Court: Wisconsin Supreme Court

180 Wis. 314

192 N.W. 1021

MURRAY

v.YELLOW CAB CO.

Supreme Court of Wisconsin.

April 3, 1923.

Appeal from Circuit Court, Milwaukee County; Walter Schinz, Judge.

Action by William Murray against the Yellow Cab Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Personal injury. While plaintiff was standing on the northwest corner of a street intersection in the city of Milwaukee, the left front wheel of the defendant's cab, coming from the north, fell off, the driver lost control of the cab, which ran upon and across the sidewalk where plaintiff was standing, striking the plaintiff and inflicting personal injuries. This action was brought to recover the damages sustained.

By special verdict it was found: (1) That the taxicab was operated at a rate of speed in excess of 15 miles per hour as it approached the place where the collision with plaintiff occurred; (2) that the operation of the taxicab at such rate of speed was a proximate cause of the collision; (3) that the taxicab driver failed to exercise ordinary care in the operation of the taxicab as it approached the place where the collision with plaintiff occurred; (4) that such failure was a proximate cause of the collision with plaintiff; (5) that plaintiff was not guilty of a want of ordinary care which proximately contributed to produce his injuries; and (6) damages, $7,000.

From a judgment entered on this verdict, the defendant appeals.Cannon, Bancroft & Waldron, of Milwaukee, for appellant.

Churchill, Bennett & Churchill, of Milwaukee, for respondent.

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

[1] Appellant contends that the collision was the result of a breaking of the spindle pin which engaged the left front wheel, keeping it in place on the automobile, which breaking caused the wheel to fall off, as a result of which the driver lost control of the cab without fault or negligence on his part. It is contended that, as the cab was equipped with a Timkin axle, a type commonly used by the best automobiles, and that the breaking resulted from crystallization, which could not have been discovered by any test or examination to which the cab or the axle might have been subjected, the breaking of the spindle pin was the proximate cause of the collision, and that the injury was the result of an unavoidable accident, without negligence on the part of the defendant.

The case was not tried or submitted to the jury on the theory that there was any negligence on the part of the defendant company in its failure to discover the crystallized condition of the broken part of the automobile. The negligence found by the jury was the excessive speed and negligent operation and management of the car at the time of the collision. An unlawful rate of speed was abundantly proved. One witness testified that the automobile was going fast, another that it was going very fast; and still another that it was running at about 30 miles per hour. When the wheel broke off, it buckled under the axle flatwise on the ground, and remained in that position until the cab was stopped. The momentum of the cab carried it up over a 6-inch curb across the sidewalk into Lake street west of where plaintiff was standing, and it came to a stop about 75 feet from the point in the street where the wheel broke off. There was evidence to show that the street upon which the cab was approaching was rough, and that just prior to the accident the driver was tugging at the steering wheel as though the left wheel of the car was in the groove between the street car rail and the adjacent pavement.

The question requiring consideration is whether such excessive rate of speed and such negligent management of the automobile can be said to be the proximate cause of the injury. It may be conceded that the accident would not have occurred in the absence of the breaking of the spindle pin. If so, was there any causal relation between the excessive rate of speed and the collision with plaintiff? Should the driver of the cab have anticipated that injury might probably result to others from the manner in which he managed and operated the same? The rate of speed is limited...