Van Galder v. Snyder

• Decision Date: 15 December 1948
• Citation: 35 N.W.2d 187,254 Wis. 120
• Parties: VAN GALDER v. SNYDER et al.
• Court: Wisconsin Supreme Court

254 Wis. 120

35 N.W.2d 187

VAN GALDER

v.SNYDER et al.

Supreme Court of Wisconsin.

Dec. 15, 1948.

Appeal from Circuit Court, Rock County; Jesse Earle, Circuit Judge.

Action by C. R. Van Galder against Owen Snyder, Jr., by guardian ad litem, and others to recover for injuries sustained by plaintiff when struck by the named defendant's automobile. From a judgment in favor of the plaintiff, the defendants appeal.-[By Editorial Staff.]

Judgment affirmed.

This is an appeal from a judgment, entered March 23, 1948, in favor of the plaintiff and against the defendants in the sum of $5,065.95 damages and $155.28 costs, or a total of $5,221.23. The action was commenced on March 6, 1947.

On October 9, 1946, about eight p. m., plaintiff sustained personal injuries when he was struck by defendant's automobile in the vicinity of a five-point intersection in the city of Janesville, Wisconsin. Plaintiff Van Galder, a pedestrian, was at the time of the collision crossing from the north curb of West Milwaukee street to proceed south on the sidewalk of Center avenue. He was struck by the defendant's car which was making a partial left turn from Pleasant street easterly onto West Milwaukee street. Other material facts will be stated in the opinion. Crosby H. Summers, of Janesville, McCue, Regan & McCue, of Milwaukee (D. J. Regan, of Milwaukee, of counsel), for appellants.

Thronson, Roethe & Agnew, of Janesville, for respondent.

MARTIN, Justice.

By its special verdict the jury found that plaintiff, C. R. Van Galder, was on a crosswalk when struck by defendant's car; that at or immediately prior to the time of the accident the defendant, Owen Snyder, Jr., failed to exercise ordinary care in respect to keeping a proper lookout and yielding the right of way to the plaintiff, and that such failure was a cause of the accident; and that at or immediately prior to the time of the accident the plaintiff failed to exercise ordinary care for his own safety in respect to keeping a proper lookout and that such failure was a cause of the accident. The defendant was found eighty per cent negligent and the plaintiff, twenty per cent.

Plaintiff testified that after he left his home he walked on the east side of the sidewalk of Center avenue in a northerly direction to the intersection of West Milwaukee street and after making due observation he proceeded straight across the intersection to the north curb of Milwaukee street. At that time he noticed that the grocery store was closed and abandoned his mission. He waited until the wigwag signal and bell at the railway crossing started operation, looked both ways and observing no approaching traffic, started back across the intersection ‘the same way I came,’ south across the street to the corner from which he had come. He was struck by the defendant after he had proceeded some thirty-five to forty feet. No other witness had seen the plaintiff long enough before the collision to know where he was crossing. The evidence of the plaintiff justified the jury's finding that the plaintiff was on a statutory crosswalk, as defined by sec. 85.10(23), Stats., when struck. The fact that plaintiff testified on adverse examination that he was east of the spur track but on the trial, corrected this statement by saying that he was west of the spur track, was a matter for the jury to consider in determining the weight that should be given to the testimony. Halamka v. Schneider, 1929, 197 Wis. 538, 222 N.W. 821. The question of credibility of witness is solely within the jury's province, and the verdict should not be disturbed if there is any credible evidence which under any reasonable view fairly admits of an inference that supports the jury's finding. Webster v. Krembs, 1939, 230 Wis. 252, 282 N.W. 564. We are of the view that there was a jury question whether plaintiff was on the crosswalk and there is ample evidence to sustain the jury's finding. Hagen v. Thompson, 1947, 251 Wis. 484, 29 N.W.2d 515.

In addition to defendant's contention that there was not credible evidence to support the jury's finding that the plaintiff was on a crosswalk when struck, the defendant also contends that the court erred in refusing to instruct that a pedestrian crossing along the usual and practical crosswalk is not tantamount to crossing on the statutory crosswalk.

The trial court in its instructions to the jury regarding the crosswalk quoted sec. 85.10(23), Stats., and stated:

‘The answer to this question simply determines who had the right of way. If Mr. Van Galder was on such a crosswalk at the time he was struck he had the right of way. If he was not on such a crosswalk at that time, then the driver of the automobile had the right of way.’ Sec. 85.44(4), Stats., was then quoted and the court stated:

‘Under such circumstances the driver of an automobile has a right to assume that the pedestrian will so yield the right of way, and he may continue in such assumption until it becomes apparent, or...