Yahnke v. Lange

• Decision Date: 04 February 1919
• Citation: 168 Wis. 512,170 N.W. 722
• Parties: YAHNKE v. LANGE ET AL.
• Court: Wisconsin Supreme Court

168 Wis. 512

170 N.W. 722

YAHNKE

v.LANGE ET AL.

Supreme Court of Wisconsin.

Feb. 4, 1919.

Appeal from Circuit Court, Milwaukee County; John J. Gregory, Judge.

Action originating in the civil court for Milwaukee county by Gustav Yahnke against W. W. Lange and others, resulting in judgment for defendants. On appeal to circuit court judgment was reversed, and new trial ordered, and from the order defendants appeal. Order reversed, and cause remanded, with instructions to affirm the judgment of the trial court.

Eschweiler, J., dissenting.

This is an action brought to recover damages resulting from a collision by an automobile owned by defendants and appellants, and driven by appellant W. W. Lange, with a milk wagon belonging to the plaintiff. It was tried by the court without a jury.

The evidence shows that between 1 and 2 o'clock in the morning of August 4, 1916, plaintiff's milk wagon was proceeding in a southwesterly direction on Kinnickinnic avenue in the city of Milwaukee. Somewhere between Homer and Otjen streets on said Kinnickinnic avenue, an automobile, owned by defendants and appellants and then driven by defendant and appellant W. W. Lange, ran into the milk wagon from behind, throwing the milk wagon against the curb, causing the horse to run away, resulting in considerable damage to the wagon and its contents. There is evidence that the night was foggy, but to what extent does not appear. Ordinarily there were street lights at the intersection of Kinnickinnic avenue and Homer street and also at the intersection of Kinnickinnic avenue and Otjen street. At the time of the collision the street lamp at the Homer street intersection was out, but the one at the Otjen street intersection was burning. At the time of the accident the milk wagon and automobile were proceeding from Homer street to Otjen street. The automobile was equipped with four lights in front, two side lights and two strong front lights. At the time of the accident the front lights were out, and only the side lights were turned on. Other material facts will appear in the opinion.

Findings of fact and conclusions of law were filed, wherein the defendants were acquitted of negligence, and the plaintiff was held guilty of contributory negligence. Judgment was rendered for the defendants and appellants. Upon an appeal to the circuit court of Milwaukee county the judgment of the civil court was reversed and a new trial ordered. The case is here on appeal from that order.Edgar L. Wood, of Milwaukee, for appellants.

Gugel & Kline, of Milwaukee, for respondent.

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

The civil court acquitted the defendants, and convicted the plaintiff, of negligence, although the undisputed evidence showed that both were violating the law. Concededly the defendant W. W. Lange was driving the automobile owned by defendants, on the streets of Milwaukee, at night, with only dim side lights functioning, too fast to enable him to bring the automobile to a stop “within the distance ahead that he could with the aid of such lights and the lights from other sources see an object the size of a person,” as the law requires. Section 1636--52, Stats. He was held free from negligence. The plaintiff, who permitted his milk wagon on the street in but partial compliance with an ordinance of the city of Milwaukee, was held negligent. It was held that the absence of headlights on the automobile efficient to light up the street ahead had nothing to do with producing the accident, while the absence of a light visible from the rear of the milk wagon proximately contributed thereto. Such contradictory findings can stand only by judicial sanction of a legal paradox. The reasoning leading to these diametrically opposite conclusions--“making fish of one and fowl of the other”--is quite incomprehensible.

[1] We readily agree with the circuit court that the defendant was guilty of negligence. Lauson v. Fond du Lac, 141 Wis. 61, 123 N. W. 629, 135 Am. St. Rep. 30, 25 L. R. A. (N. S.) 40. As said by the circuit judge:

“It may be that the driver, after he discovered the presence of the wagon when within a few feet of him, could not by the exercise of ordinary care avoid striking it, but the conclusion is irresistible that the driver was negligent in getting into such a position. The driver violated the statute mentioned, either in driving at such a rate of speed that he could not bring the automobile to a stop within the distance that he could see an object the size of a person, or his lights were insufficient to enable him to see objects ahead of him in time to avoid them.”

[2][3][4][5][6] But that does not dispose of the case. If plaintiff was guilty of negligence which proximately contributed to the accident he cannot recover. Lloyd v. Pugh, 158 Wis. 441, 149 N. W. 150;Ludke v. Burck, 160 Wis. 440, 152 N. W. 190, L. R. A. 1915D, 968. An ordinance of the city of Milwaukee, then in force, required...