Richter v. Dahlman & Inbush Co.

• Decision Date: 05 December 1922
• Citation: 190 N.W. 841,179 Wis. 7
• Court: Wisconsin Supreme Court
• Parties: RICHTER v. DAHLMAN & INBUSH CO. ET AL.

179 Wis. 7

190 N.W. 841

RICHTER

v.DAHLMAN & INBUSH CO. ET AL.

Supreme Court of Wisconsin.

Dec. 5, 1922.

Appeal from Circuit Court, Milwaukee County; E. T. Fairchild, Judge.

Action by A. L. Richter against the Dahlman & Inbush Company and Henry Henke. Judgment for defendants, and plaintiff appeals. Reversed and remanded for new trial.Richter & Nebel, of Milwaukee, for appellant.

Dale C. Shockley, of Milwaukee (Edgar P. Ettenheim, of Milwaukee, of counsel), for respondent Dahlman & Inbush Co.

A. W. Foster, of Milwaukee, for respondent Henke.

JONES, J.

Action to recover for personal injuries sustained by reason of plaintiff falling over a towline between two automobiles. A truck owned by defendant Dahlman & Inbush Company became disabled about 5 o'clock in the afternoon of February 14, 1920, at a point two blocks distant from the intersection of Milwaukee and Wisconsin streets. A touring car owned by defendant Henke was secured to tow the truck. To connect the cars, an inch chain 15 feet long was used, and when they were connected the cars were about 10 feet apart. The Henke car then towed the truck north on Milwaukee street towards Wisconsin street, and upon arrival there was stopped in order to let the traffic east and west pass by. It was then about 6 o'clock. Plaintiff, on foot, was proceeding east on the south side of Wisconsin street, and saw the two cars at the intersection. Either before, or immediately after the cars started, he walked to the rear of the touring car, stepping a little south of the crosswalk in doing so, and in an attempt to pass between the cars stumbled over the towline and was thrown to the pavement. At the close of the testimony each defendant moved for a directed verdict. Both motions were granted, and judgment entered dismissing the complaint.

[1] It is contended by counsel for plaintiff that towing a machine in a busy street is of itself negligence. With this we do not agree. When a machine is disabled in a busy street some disposition of it must be made, and we know of no better method than to attach it to another machine, as was done in this case. It is the common mode constantly adopted in city and country, and the question in every case is whether ordinary care is used. The precautions to avoid danger necessarily depend, among other things, on the time of day and the amount of traffic in the streets.

In this case certain facts are undisputed. It was about six o'clock at night and zero weather. Both cars had lights burning; plaintiff saw them both, and both drivers saw him. The cars were stopped within a few feet after plaintiff fell. On other points there are numerous direct conflicts in the testimony. The plaintiff, and another witness wholly disinterested, testified that the front car was nearly over the crosswalk, while defendants' two witnesses said that the front wheels of the towing car were even with the south line of the crosswalk. According to plaintiff's testimony, when he attempted to pass, the cars were standing still, and as he stepped on the chain the front car started forward and the chain sprang up, caught his heel and threw him. Defendants' testimony was that the rear end of the towing car was about 8 feet back of the curb line; the chain was taut and rigid; the cars were moving as plaintiff approached; and that the driver of the towing car thought that plaintiff would see the chain, and kept moving. Plaintiff swore that he saw another person pass between the cars before he undertook to do so. Defendants' witnesses swore they did not see any person going between the cars. There was also conflict as to the giving of warnings by the drivers. They testified that the horns were sounded, and that the driver of the rear car yelled a warning. Plaintiff and the witness Lewis testified that they heard no horns or other warning. They were both near the cars, and so situated that they could easily have heard the warnings if they were given.

It is claimed by defendants' counsel that they were not paying attention; that their testimony was purely negative, and hence not sufficient to take the case to the jury in the face of the positive testimony of the drivers of the cars. They cite the following cases as sustaining their contention that on this issue there was no jury question: Johnson v. Ætna Life Ins. Co., 158 Wis. 56, 64, 147 N. W. 32, Ann. Cas. 1916E, 603;Raasch v. Milwaukee E. R. & L. Co., 151 Wis. 170, 138 N. W. 608;Jordan v. Osborne, 147 Wis. 623, 133 N. W. 32;Ryan v. La Crosse City Ry. Co., 108 Wis. 122, 83 N. W. 770;Draper v. Baker, 61 Wis. 450, 21 N. W. 527, 50 Am. Rep. 143.

[2][3] It is undoubtedly the rule that the testimony of a credible witness that he saw or heard a particular thing at a particular time and...