Pietsch v. McCarthy

• Decision Date: 12 January 1915
• Citation: Pietsch v. McCarthy, 159 Wis. 251, 150 N.W. 482 (Wis. 1915)
• Parties: PIETSCH v. MCCARTHY.
• Court: Wisconsin Supreme Court

159 Wis. 251

150 N.W. 482

PIETSCH

v.MCCARTHY.

Supreme Court of Wisconsin.

Jan. 12, 1915.

Appeal from Circuit Court, Milwaukee County; O. T. Williams, Judge.

Action by Hugo L. Pietsch against John McCarthy. Judgment for the plaintiff in the civil court was reversed by the circuit court and new trial granted, and the plaintiff appeals. Judgment of the circuit court reversed, and cause remanded, with directions to dismiss the complaint.

Timlin, J., dissenting.

Plaintiff brought this action in the civil court of Milwaukee county to recover damages caused to his automobile by running into the rear of a wagon that was being driven by the defendant on one of the streets of the city of Milwaukee. The collision occurred shortly after 6 o'clock on October 16, 1913. It was drizzling rain and quite dark. The alleged negligence of the defendant consisted in not carrying a light, as required by a city ordinance. The plaintiff gave as a reason for not seeing the wagon in time to avoid the collision that his power of vision was obscured by the headlights of automobiles approaching him. Plaintiff had his side lights lit, which threw light ahead of him about 10 feet. There was a general verdict for the plaintiff, by which his damages were assessed at $95.83. Judgment was entered thereon, and an appeal was taken to the circuit court. The latter court made findings of fact and conclusions of law in the case. The findings of fact material to the questions raised on this appeal are the following:

“VII. That the testimony showed that the plaintiff was running an auto westerly on Grand avenue between Thirteenth and Fourteenth streets, moving at the rate of 13 miles an hour, that the defendant was driving a heavy team and an empty dump wagon, in the same direction, going at three or four miles an hour, and that it was after sundown.

VIII. That the plaintiff, going at the rate of 13 miles an hour, ran into the rear end of the defendant's dump wagon, knocking down one of the horses and nearly threw the defendant into the street.

IX. That at the time many autos on the other side of the street were moving east; that they had very bright lights, or what the plaintiff calls ‘bullseye’ lights, and that for a hundred feet before the collision the plaintiff was blinded by these lights so that he could not see anything ahead of him, and yet he kept moving at the same rate, 13 miles per hour or over 19 feet per second.

X. That the plaintiff did not have at least one lamp giving a reasonably bright light, on the front of his auto, as he only had side lights of oil burning at the time.

XI. That the plaintiff, when his view in the direction in which he was running his auto was obscured, failed to reduce his speed to such a rate as would tend to avoid danger and accident and permit him to bring his auto to a complete stop within the distance ahead that he could, with the aid of the lights thereon, in connection with the lights from other sources, see an object the size of a person.

XII. That the collision occurred within 40 or 50 minutes after sundown.

XIII. That the city ordinance required lights to be on such vehicles as the one driven by the defendant, one hour after sundown.”

As conclusions of law, the court found:

“I. That the civil court erred in refusing to grant a nonsuit, for the reason that the plaintiff failed to make out a cause of action for negligence against the defendant.

II. That the plaintiff is guilty of negligence, proximately contributing to the damage, in not placing in the front of his auto at least one lamp giving a reasonably bright light, in not reducing his speed, when his view in the direction in which he was running his auto was obstructed, to such a rate as would tend to avoid danger and accident, and in not reducing his speed, when his view in the direction he was running his auto was obstructed, so as to permit him to bring his auto to a complete stop within the distance ahead that he could, with the aid of the lights thereon in connection with the lights from other sources, see an object the size of a person.

III. That the negligence of the plaintiff in violation of the statutes requiring lights and speed, proximately contributed to his damages.”

A new trial was ordered by the circuit court, and plaintiff appeals.

Charles E. Hammersley, of Milwaukee, for appellant.

Samuel Wright, of Milwaukee, for respondent.

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

[1] The plaintiff testified that he was proceeding at a rate of speed of from 10 to 13 miles an hour; that his vision was so dazzled by headlights of automobiles coming in the opposite direction that he could not see the wagon ahead of him, and that in this situation he proceeded a distance of 100 feet without slacking his speed until he...