White v. Kane

Eschweiler, J.

The defendant Liability Company contends that the questions raised by its demurrer are not, as it was held in the court below, disposed of against it by the ruling of this court in Ehlers v. Automobile Liability Co. (this same defendant), 166 Wis. 185, 164 N. W. 845. It urges that the policy sued, upon here is unlike the one in that case, inasmuch as in this one, by the clause quoted first in the foregoing statement, it only undertakes that “it will pay to assured the amount of any filial judgment for damages . . . rendered against the assured after trial of the issue,” etc.; while by the policy in the Ehlers Case, supra, it agreed “that it will be directly liable for and will pay all damages, etc.” Were this clause from the policy alone to be the determining factor, it might well be held an indemnity rather than a liability contract and within the decision of Glatz v. General Acc., F. & L. Assur. Corp. 175 Wis. 42, 183 N. W. 683. The defendant, however, by a special and added condition agreed that the coverage shall be that which would be in accord with the specifically designated city ordinance and the state statutes. This last clause amounts to an assumption by the defendant company of the direct liability provided for by both the ordinance and statute. Having expressly so recognized the ordinance and made it a part of its contract to that extent at least, and having expressly agreed to comply with the statute requiring that bonds.issued for this purpose should assume direct liability, it cannot now be heard to question its direct liability.

Its liability being thus direct, it was properly made a party defendant as expressly held in the Ehlers Case, supra. The conclusion here reached is identical with that of the policy declared in Massachusetts by statute even as against the language in the policy to the contrary. Lorando v. Gethro, 228 Mass. 181, 117 N. E. 185.

Upon the appeal by the defendant Kane, the owner of the taxicab then being driven by his servant, the finding of the jury that the negligence of the driver was a proximate cause of plaintiff’s injury is clearly supported by the evidence. The driver was, according to his own testimony, driving from twenty-five to thirty miles an hour until within a few feet of the point of collision. The driver of the bus, who was facing the approaching taxi and saw it for a long, distance down the causeway, estimated the speed at about forty miles an hour. The distance plaintiff was carried and thrown after, the collision and the space the taxicab covered after'collidifig with the plaintiff and under set brakes all amply support the finding in effect of a speed in substantial excess of the lawful rate.

It is contended that plaintiff’s conduct requires a finding of such contributory negligence as a matter of law that rnust defeat his right to recover. • On a level, straight, long stretch of highway he was going south, and the taxi coming north was within his possible range of vision for many hundreds of feet. He testified that, before turning from the path between the sand pile and the ditch towards the west to meet the motor-bus overtaking him from the north, he looked both to the north and south, estimating the range of his vision to be 150 feet each way, and saw no approaching vehicle from either direction other'than the motor-bus. From such point he had proceeded not more than fifteen feet before the collision and had not looked again to the south. While there is no escape from the conclusion that had he looked a little further south than he says he did, or more attentively or extensively than he probably did, he must have seen the approaching automobile within the distance of two or three hundred feet of the point of collision, where it must have been at the time he started to cross, nevertheless, as a pedestrian lawfully upon the highway he had the right to act upon the assumption that such a vehicle upon the highway, having no greater right to the use thereof than he had, would be acting in compliance with the law and approaching at a reasonable rate of speed and within the statutory limits. Under the facts as thus presented we think it was a question for the jury to determine whether or not the plaintiff then acted with ordinary care and that their finding in the affirmative in that regard cannot be disturbed. Klokow v. Harbaugh, 166 Wis. 262, 164 N. W. 999. And see the case, quite close in its facts to the case at bar, of Creedon v. Galvin, 226 Mass. 140, 115 N. E. 307; also the following: Hennessey v. Taylor, 189 Mass. 583, 76 N. E. 224; Donovan v. Bernhard, 208 Mass. 181, 94 N. E. 276; Quinlan v. Hugh Nawn C. Co. 235 Mass. 190, 126 N. E. 369; French v. Mooar, 226 Mass. 173, 115 N. E. 235; Seabut v. Ward B. Co. 231 Mass. 339, 121 N. E. 23; Burns v. Oliver Whyte Co. 231 Mass. 519, 121 N. E. 401; Knapp v. Barrett, 216 N. Y. 226, 110 N. E. 428; Harker v. Gruhl, 62 Ind. App. 177, 111 N. E. 457.

It follows, therefore, that the judgment must be affirmed.

By the Court. — Judgment affirmed.