Opinion
January 10, 1951 —
February 6, 1951.
APPEAL from a judgment of the circuit court for Marathon county: GERALD J. BOILEAU, Circuit Judge. Affirmed.
For the appellant there was a brief by Genrich Terwilliger, attorneys, and Emil A. Wakeen and Walter H. Piehler of counsel, all of Wausau, and oral argument by Herbert Terwilliger.
For the respondents there was a brief by Smith, Okoneski, Puchner Tinkham of Wausau, and oral argument by Richard P. Tinkham.
This was an action for damages commenced on April 6, 1950, by William Ninneman, plaintiff, against Morris A. Schwede and Commercial Casualty Insurance Company of Newark, New Jersey, a foreign insurance corporation, defendants, to recover for injuries sustained when plaintiff was struck by defendant Schwede's automobile. From a judgment entered on June 24, 1950, dismissing plaintiff's complaint on the merits and taxing costs in favor of defendants, plaintiff appeals.
The action was tried to the court and jury which found defendant Schwede causally negligent in respect to management and control, and plaintiff causally negligent in respect to lookout and failing to yield the right of way. The jury attributed twelve and one-half per cent of the negligence to defendant and eighty-seven and one-half per cent to plaintiff, and assessed damages for personal injuries at $3,000 and for medical expense at $1,201.25.
Plaintiff was injured when he was struck by defendant Schwede's car in an intersection. According to plaintiff's testimony, he retired early and about midnight woke up and decided to take a walk and get some tobacco. He stopped at a tavern at the corner of Wausau avenue and Sixth street in the city of Wausau and after having had a beer, proceeded in the direction of his home. He walked two blocks south from Wausau avenue on the west side of Sixth street to the intersection of Sixth street and Park avenue, proceeded to the curb, looking to the left and right. A car was coming from the right about three quarters of a block away. He stepped off the curb and started walking east across the intersection. When he got to the middle of the road he looked to the right again and defendant's car was about one hundred twenty-five to one hundred fifty feet south. Plaintiff continued walking until he was a few steps past the center of the street when he was hit by the left front fender and headlight of the car.
There is some conflict in the testimony. Defendant Schwede testified that he was returning home from a dance at the time of the accident, and was driving north on Sixth street at a speed of eighteen to twenty miles per hour. As he entered the intersection he saw a pedestrian dressed in dark work clothes walking across Sixth street from west to east at a point nine to ten feet north of the north edge of the north crosswalk; that when he first saw plaintiff, the pedestrian was just west of the center of Sixth street and walking straight east; that the car was in the center of the east lane of travel, forty to fifty feet from plaintiff at that time; that Schwede put his foot on the brake and when he saw that plaintiff was not looking toward him and did not see him, he applied his brakes hard and swung to the right. Plaintiff lay across the fender as the car traveled about twenty-two feet after the accident before stopping.
Sec. 85.44 (4), Stats., provides:
"Every pedestrian crossing a highway at any point other than a marked or unmarked crosswalk shall yield the right of way to vehicles upon the highway."
The jury found that plaintiff was causally negligent with respect to yielding the right of way, from which follows the necessary inference that they concluded that when he was struck he was not on the crosswalk. There is credible evidence to support the inference and the finding, and we must consider the case as though he was not on the crosswalk when struck.
The finding, coupled with plaintiff's own testimony that, although he saw defendant's car coming toward him when it was a block or three quarters of a block away, and that he was "watching it all the time," he did not stop but continued to walk until he was struck or just an instant previously, compels the conclusion that he was guilty of as great a degree of causal negligence as was the defendant driver.
In a situation quite similar to that here presented the court said:
"The fact that a pedestrian has reached the marked center line of a street [as the plaintiff in the instant case claims he had] does not lessen such pedestrian's absolute duty to yield the right of way to vehicles upon the street." Post v. Thomas, 240 Wis. 519, 525, 3 N.W.2d 344.
In that case, where the pedestrian crossed at a point other than a crosswalk, the court affirmed the action of the trial court in its determination that the negligence of the pedestrian was as great as that of the driver of the automobile which had struck him.
The negligence of the defendant driver did not affect plaintiff's absolute duty to yield the right of way. De Goey v. Hermsen, 233 Wis. 69, 288 N.W. 770.
Plaintiff complains that the trial court erred in its refusal to submit questions inquiring as to defendant's negligence in driving with defective lights and in failing to sound his horn. Had the requested questions been submitted answers favorable to the plaintiff would not have affected the result. There was, therefore, no error in such refusal. Coggswell v. Davis, 65 Wis. 191, 26 N.W. 557.
Plaintiff contends that a new trial should be granted because of prejudicial remarks made by a traffic officer and prejudicial conduct on the part of counsel. He refers to the officer's reference to the "point of impact" and contends that it was a statement of his conclusion as to plaintiff's position upon the street when he was struck. Upon objection the answer was stricken.
We do not consider that any prejudice resulted. The same must be said as to the remarks and conduct of defendants' counsel. At most, they might have affected the jury in its consideration of the question of damages. That question is no longer in the case.
Counsel concedes that an instruction of which he complains was followed by one limiting its effect and stating the law correctly. He complains that the manner in which the instruction was given "gives a break to the defendants." We do not consider that defendants were given any advantage by the form of the instructions or the manner in which they were given.
We find nothing in the record to indicate that justice has miscarried so as to require us to grant a new trial in the interests of justice.
By the Court. — Judgment affirmed.