West v. Johnson

• Decision Date: 11 November 1930
• Citation: 233 N.W. 94,202 Wis. 416
• Parties: WEST v. JOHNSON.
• Court: Wisconsin Supreme Court

202 Wis. 416

233 N.W. 94

WEST

v.JOHNSON.

Supreme Court of Wisconsin.

Nov. 11, 1930.

Appeal from a judgment of the Municipal Court of Outagamie County; Theodore Berg, Judge.

Action by John West, by his guardian ad litem, Mrs. Mathilda West, against Dr. Henry T. Johnson. From a judgment for plaintiff, defendant appeals.--[By Editorial Staff.]

Reversed, with directions.

Action commenced May 10, 1929; judgment for plaintiff entered January 2, 1930. Defendant appeals.

The action is to recover for injuries sustained by plaintiff on being struck by defendant's automobile alleged to have been caused by negligence of the defendant. Upon trial the following facts appeared without dispute or may properly have been inferred from the evidence by the jury.

The plaintiff, a boy eleven years old, got off the front end of a street car, which had stopped at a crosswalk of a street intersection for discharge of passengers. When the car went ahead the boy walked behind it to cross the street. He so started close behind the car, but as the car went ahead the distance between him and the car widened somewhat. The car track was a single track, on the middle of the street. As the boy stepped over the last rail, and when he was not over a foot from the rail, he looked to his right, and at the moment of looking was struck by the left end of the front bumper of defendant's automobile. While the street car was passing him he was looking at a man inside with whom he had been talking. He was going to see a basket ball game, but was not late and was not walking fast. There were street lights on each of the four corners of the street intersection. He knew of the existence of a snow bank on the far side of the street, and that because of it cars had to pass close to the street car. He was familiar with the locality and the automobile traffic on the street, was accustomed to ride alone on street cars, and knew that he should not pass behind a street car without looking for on-coming traffic on the far side of it. Defendant was driving close to the car track because the snow bank above referred to left barely room between the bank and a passing street car for an automobile to pass. His headlights were turned on. He was driving twelve miles an hour as he was passing the street car. As he approached the street car he saw passengers standing on the street who had alighted from it and knew that the street car was going ahead as he was passing it. He did not blow his horn. He saw the boy as soon as he appeared from behind the car and stopped his car immediately. He turned to the right into the snow bank, but could not avoid striking the boy.

At the close of the testimony the defendant moved for a directed verdict. The motion was denied. The jury found the defendant negligent, the plaintiff not negligent, and assessed plaintiff's damages at $2,500. The court gave the plaintiff the option to take judgment for $1,500 or stand a new trial, and he took judgment.Bender, Trump, McIntyre & Freeman of Milwaukee (Eugene L. McIntyre, of Milwaukee, of counsel), for appellant.

Keller, Keller & O'Leary, of Appleton (L. Hugo Keller and Gustave J. Keller, both of Appleton, of counsel), for respondent.

FOWLER, J.

The appellant assigns as error that the court should have granted his motion for a directed verdict on the grounds that as matter of law the defendant was free from negligence and the plaintiff guilty of contributory negligence, and claims that judgment should have been entered for the defendant. He claims further that, if judgment should not have been so entered, the verdict as reduced by the court is in excess of the lowest amount which the jury might properly have awarded under the evidence, and that the court erred in giving the plaintiff option to take judgment in excess of such smallest amount.

[1] 1. We are of opinion that the jury was justified in finding the defendant negligent for passing so close to the street car at such speed immediately after passengers had alighted without giving warning of his approach.

[2] 2. The question of the boy's contributory negligence is closer. We have examined the decisions of this court which treat contributory...