Weber v. State

• Decision Date: 12 February 1924
• Citation: 183 Wis. 85,197 N.W. 193
• Parties: WEBER v. STATE.
• Court: Wisconsin Supreme Court

183 Wis. 85

197 N.W. 193

WEBER

v.STATE.

Supreme Court of Wisconsin.

Feb. 12, 1924.

Error to Circuit Court, Manitowoc County; Michael Kirwan, Judge.

Anton A. Weber was convicted of manslaughter in the fourth degree, and he brings error. Reversed, and remanded for new trial.

The plaintiff in error, hereinafter called the defendant, was convicted on the 13th day of January, 1923, upon a charge of manslaughter in the fourth degree, and sentenced to imprisonment for the term of one year in the state's prison at Waupun. At about 7:20 o'clock in the afternoon of September 24, 1922, Anton Schmirler, driving a Ford sedan, and one Verne Hall, also driving a Ford sedan, were returning from the city of Green Bay. They were traveling south on trunk line 114, about 1 1/2 miles south of the village of Sherwood, in the town of Harrison, the Hall car being in the lead. In the Hall car were the members of Hall's family. In the Schmirler car was one Mrs. Meggers, the driver, Schmirler, his little girl, and Daisy Calkins, a girl 16 years of age, who sat on the front seat. The deceased, Mrs. Meggers, sat on the rear seat behind the driver with her child in her lap. The defendant was driving northerly in a Nash roadster, accompanied by one Mrs. Ethel McClean, going from Hilbert to Sherwood. The Hall and Schmirler cars were traveling down an incline, upon an improved, gravel road, which was 17.4 feet wide between the grass lines, and on the westerly side, at a distance of 4.2 feet from the improved part, was a dirt curbing about 8 inches high. The Hall car met and safely passed the car driven by the defendant. The Schmirler car in some way collided with the Weber car, ran a few feet, and turned over to the west on its side. Mrs. Meggers was thrown against the westerly side of the Schmirler car, breaking the window, so permitting her head to project beyond the car, where it was caught between the upper part of the car and the ground, resulting in her almost instant death. After the accident the Schmirler car was parallel with the highway. The Weber car continued for a short distance. Mrs. McClean got out while it was still moving, and Weber permitted it to run to the westerly side of the road, where it came to rest with the front wheels upon or near the curbing. When the Schmirler car was tipped back, the left or easterly wheels were in or close to the grass line. The distance between the two cars after they came to rest was 44 feet and 9 inches. After the contact each car traveled approximately 20 to 25 feet.P. Fox, of Chilton, for plaintiff in error.

Herman L. Ekern, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and H. F. Arps, Dist. Atty., of Chilton, for the State.

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

The question at issue in this case is whether or not the defendant, Weber, negligently drove his car to the westerly side of the center of the highway, in violation of the statute, so causing the accident. Inasmuch as there must be a new trial, we shall withhold comment upon the evidence, suffice it to say that there is evidence sufficient to take the case to the jury.

[1] At or about the time the Hall car met the Weber car, Hall exclaimed to his wife and his mother-in-law, who were in his car, “My God, he will hit Tony sure;” Tony being Mr. Schmirler, the driver of the car which overturned. Hall was permitted to testify to this, as was Mary Calkins, his mother-in-law, and his wife, Mrs. Pearl Hall. The admission of this testimony is assigned as error, and Shiefel v. State, 180 Wis. 186, 192 N. W. 386, is cited in support of...