Berantsen v. Reuteler & Dorsch, Inc. , 191 Wis. 275 ( 1926 )

Eschweiler, J.

We are satisfied that no showing was made by which any legal liability could be attached to either the Reuteler & Dorsch Company or Holzheater.

Under any theory as to the relationship of possible agency between Sheehan and each of the other defendants, Sheehan was clearly not performing an act within the scope of any such agency at the time of the injury. It was not part of his duty as employee of the Reuteler & Dorsch Company to drive the automobile at the time in question. Neither was there a sufficient showing that there was any express or implied request on the part of Holzheater that Sheehan should use this automobile as he did from 4 o’clock on to the time of the accident.

There were, however, clearly, questions of fact proper to have been submitted to a jury as to whether or not defendant Sheehan failed to exer.cise ordinary care in the management of the automobile and as to whether or not there' was any want of ordinary care on the part of plaintiff, and it was error to direct a verdict in favor of the defendant Sheehan on either of those two questions.

Plaintiff, a woman.of fifty-four years, then weighing about 235 pounds, standing still in the center of a fifty-foot-wide paved highway with an automobile approaching from the south, her right-hand side, was, as she crossed the twenty-five-foot space in the highway, in plain sight of Sheehan driving the half block from the north. There was nothing to prevent Sheehan from driving further to the west and safely clearing plaintiff as she stood there, rather than for him to continue on the line which he had been following some distance from the west curb. The plaintiff having reached the center of the highway and her attention being then properly engaged on the automobile approaching from the south, into the zone of whose travel she was then entering, might properly be excused, in the view of a jury, from further watching for the approach of the automobile from the north on the westerly half of the highway and the zone of whose travel she was just leaving. These questions, therefore, should have been submitted to a jury.

By the Court. — Judgment affirmed as to the defendants Reuteler & Dorsch Company and defendant Holzheater; judgment reversed as to defendant Sheehan, and the cause remanded for further proceedings as to him, but one bill of costs to be allowed to respondents Reuteler & Dorsch Company and Holzheater, appellant to have costs against respondent Sheehan.