Hustad v. Evetts , 230 Wis. 292 ( 1939 )

The following opinion was filed December 6, 1938:

Fowler, J.

The appellants assign as error among other grounds that if the defendant was negligent at all the negligence of the plaintiff as found by the jury was at least as great as the defendant’s. If this contention be upheld, it is unnecessary to consider any other assignments of error, as under the comparative-negligence statute, sec. 331.045, the plaintiff cannot recover.

That the plaintiff was negligent seems to us beyond controversy. It is not contended otherwise by plaintiff’s counsel. That negligence plainly was stepping out on the left side of a standing automobile into the middle of a street without looking to see whether another automobile was approaching. It is also too plain for argument tO' the contrary that if the plaintiff had looked to the rear before he stepped from the truck he would not have stepped off until defendant’s automobile had passed and he would not have been injured. It may be, although we do not assume so to decide because the proposition is not before us, that the jury might properly have found that the plaintiff was not negligent by presuming, in absence of evidence that plaintiff did not look, because due care is to be presumed in absence of evidence showing negligence, that the plaintiff looked toward the south while crossing the street while going back to the truck after delivering the two bottles of milk, saw the defendant’s automobile, judged that it was so far away that it would not reach the truck before he had crossed ahead of it in delivering tire extra bottle of milk, and relying on this judgment, reasonably reached, stepped from the truck without again looking toward the approaching- automobile. But we are foreclosed from this line of reasoning by the jury’s finding that the plaintiff was negligent.

It seems to us that the negligence of the plaintiff as found by the jury was necessarily as great as the negligence of the defendant. We are aware that, as we have previously held, the cases will be extremely rare when the negligence of the plaintiff can be held as matter of law as great or greater than that of the defendant. Callaway v. Kryzen, 228 Wis. 53, 279 N. W. 702; McGuiggan v. Hiller Brothers, 209 Wis. 402, 245 N. W. 97. But we have so held. Zenner v. Chicago, St. P., M. & O. R. Co. 219 Wis. 124, 262 N. W. 581; Kilcoyne v. Trausch, 222 Wis. 528, 269 N. W. 276; Grasser v. Anderson, 224 Wis. 654, 273 N. W. 63. We consider that the instant case is as clearly within the statute as matter of law as any of the three next-above cited. Greater negligence can hardly be conceived than for a deliveryman experienced in his work, thirty-three years of age, intelligent, and in full possession of his faculties, in making a delivery to step, without looking for traffic, from the left side of his delivery truck standing in a street, directly in the path of an oncoming automobile twenty feet or thereabouts away, traveling even at twenty miles per hour, which was the lawful speed at the place of the instant accident.

By the Court. — The judgment of the circuit court is reversed, and the cause remanded with directions to the circuit court to dismiss the complaint.