Seligman v. Orth

• Decision Date: 07 April 1931
• Citation: 205 Wis. 199,236 N.W. 115
• Parties: SELIGMAN ET AL. v. ORTH ET AL.
• Court: Wisconsin Supreme Court

205 Wis. 199

236 N.W. 115

SELIGMAN ET AL.

v.ORTH ET AL.^a1

Supreme Court of Wisconsin.

April 7, 1931.

Appeals from judgments of the Circuit Court for Racine County; E. B. Belden, Circuit Judge. Reversed.

These are five several actions commenced by the above-named plaintiffs, Agnes Seligman, Aaron Seligman, Margaret Gitzen, Joseph A. Gitzen, and Roy Grant, Jr., on the 14th day of August, 1929, against the defendants Jacob Orth and Walter W. Hammond, administrator of the estate of Sylvester Orth, deceased, defendants, to recover damages resulting from an automobile accident. Upon motion of the defendant Walter W. Hammond, administrator of the estate of Sylvester Orth, deceased, Roy Grant, Jr., was brought in as a party defendant, in all actions except his own, and the said Walter W. Hammond, administrator, filed a complaint against said Roy Grant, Jr., for contribution. From judgments entered in favor of the plaintiffs and against the defendant Walter W. Hammond, as administrator of the estate of Sylvester Orth, deceased, on the 7th day of June, 1930, the said Walter W. Hammond appeals.Hannan, Johnson & Goldschmidt, of Milwaukee (Whaley & Paulsen, of Racine, of counsel), for appellants.

James E. Coleman and W. J. McCauley, both of Milwaukee, for impleaded defendant.

Fawcett & Dutcher, of Milwaukee, for respondents Seligman.

Seth W. Pollard and C. F. Mikkelson, both of Milwaukee, for respondents Gitzen.

Wheeler & Witte, of Milwaukee (Coleman & McCauley, of Milwaukee, of counsel), for respondent Grant.

OWEN, J.

On the 30th day of September, 1928, Agnes Seligman, Roy Grant, Joseph A. Gitzen, and Margaret Gitzen were driving north on State Trunk Highway 41 from Chicago to Milwaukee in a Packard car owned by Aaron Seligman, husband of Agnes Seligman. The car was driven by Roy Grant. Upon driving through Racine county, they met a car owned by Jacob Orth and driven by his son Sylvester Orth, deceased. The Orth car suddenly turned to the left immediately in front of the Packard car, resulting in a collision, causing damage to the Packard car and injuries to all of its occupants. These several actions are brought to recover the resulting damages. They were all combined for the purposes of trial, were argued together in this court, and will be disposed of in a single opinion.

[1] The jury found that immediately before the collision Sylvester Orth drove his car to the left of the center of the highway, but that in so doing he did not fail to exercise such care as the great mass of mankind ordinarily exercise when acting under the same or similar circumstances. The trial court held that the conduct of Orth in driving his car to the left of the center of the highway was negligence as a matter of law, and rendered judgment in each case in favor of the plaintiff and against the administrator of the estate of Sylvester Orth, deceased. If the finding of the jury can be sustained, the defendants were entitled to judgment.

[2][3] At the time of the accident section 85.01 (1), Stats., provided that “whenever the operators or drivers of vehicles or draft animals shall meet on any highway each shall seasonably drive his vehicle or animal to the right of the middle of the traveled part of the highway so that each shall have one-half of the roadway and that they may pass without interference.” By virtue of this statute, if for no other reason, it was the duty of Sylvester Orth to keep to the right of the center of the highway, and under ordinary circumstances his failure to do so would constitute negligence as a matter of law. However, it does not constitute negligence under all circumstances. If one be precipitated to the left side of the road by virtue of circumstances over which he has no control, one is not negligent. Johnson v. Prideaux, 176 Wis. 375, 187 N. W. 207;Loehr v. Crocker, 191 Wis. 422, 211 N. W. 299;Cheves v. Miller, 195 Wis. 106, 217 N. W. 684.

If there was no evidence in the case except the bare fact that Orth turned to the left, there would be no escape from the conclusion that he was guilty of negligence as a matter of law. However, it appeared from the testimony of Grant, the driver of the car in which the plaintiffs were riding, that when the Orth car was but a short distance ahead of the Packard car it suddenly turned to the left in front of the Packard car, resulting in the collision. He could not estimate the distance in feet. He would not say it was 50 or 20 feet away when it turned to the left of the center of the highway. He said it was possibly a second or two previous to the accident. Up to the time the Orth car commenced to turn to the left, there had been nothing about the car to attract his attention. It did not zigzag from side to side. After the collision the left front tire was blown out. The Orth car received the impact of the collision on its right side, so that the left front wheel of the Orth car could not have been struck by the Packard car.

[4] Sylvester Orth was seriously injured in the accident and died a few days thereafter. While he was lying on the ground in the vicinity of the accident in great pain, a deputy sheriff claims to have talked with him about the cause of the accident. The deputy sheriff testified that he asked him what caused the accident, and he said he did not know. He asked him if he had been drunk. He said, “No.” He asked him if he went to sleep, and he said he might have. The father and the sister of the deceased testified that, a day or two after the accident, while he was in the hospital, he told them he lost control of his car because he was blinded by the lights of the Packard car. There is little if any probative force to the testimony of either of these statements. Neither of such statements was controlling upon the cause of the accident. The jury was not bound to believe them.

[5] We have, then, the fact that deceased was on the wrong side of the road. We have a presumption that he exercised due care for his own safety. Gordon v. Illinois Central Railroad Co., 168 Wis. 244, 169 N. W. 570;Worsley v. Johnson, 172 Wis. 325, 178 N. W. 457;Sweeo v. Chicago & Northwestern Railway Co., 183 Wis. 234, 197 N. W. 805;Baltimore & Potomac R. Co. v. Landrigan, 191 U. S. 461, 24 S. Ct. 137, 48 L. Ed. 262. This in itself is a very substantial presumption, and while it does not constitute affirmative evidence that due care was exercised, it does require proof to the contrary in order to remove its persuasive force. While the physical situation showed that he was on the wrong side of the road, this presumption intervened to prevent the conclusion that he was there by reason of his own negligence. The right of the plaintiffs to recover could not rest upon the mere fact that he was on the wrong side of the highway. In order for them to recover it was necessary for them to show that he was there by reason of his lack of ordinary care.

[6][7][8] We may conjecture that the deceased permitted the car to turn to the left because he fell asleep. Upon this point we might well further conjecture that if he had not done so before he was not likely to fall asleep when this car with its bright headlights was upon him. We have the further circumstance that...