Opinion
November 11, 1954 —
December 7, 1954.
APPEAL from a judgment of the circuit court for Milwaukee county: FRANCIS X. SWIETLIK, Circuit Judge. Affirmed.
For the appellant the case was submitted on the brief of Arnold C. Otto of Milwaukee.
For the respondent there was a brief and oral argument by D. J. Regan of Milwaukee.
East Wisconsin avenue runs east and west in the city of Milwaukee and is intersected by North Water street. The intersection is marked by a stop-and-go light. Plaintiff testified that on June 23, 1950, at about 6:50 p.m., she walked east to the northwest corner of the intersection intending to cross East Wisconsin avenue. When the light changed permitting her to cross she looked east and saw nothing to interfere with her movement across the street. She stepped off the sidewalk and proceeded south at about the center of the crosswalk which was 11 1/2 feet wide. She continued south to the north rail of a streetcar track carrying westbound electric cars. When she reached that point she received a severe jolt in the back. It developed that it was an automobile driven by one John Weller which struck her.
Just north of East Wisconsin avenue and on the west side of North Water street, apparently between the sidewalk and the streetcar track, there was a safety zone 81 feet, five inches long. Eldon Nutt, defendant's assured, called by plaintiff as her own witness, testified that he was driving south on North Water street. When he reached a point near the north end of the safety zone he observed the stalled Weller automobile. He stopped his car and after some little time Weller asked him for a "shove to get him going." Nutt knew nothing of Weller's intentions nor of the condition of his car. When the traffic light changed to green he gave Weller a shove. He was asked:
" Q. Well, what did you do then, Mr. Nutt? A. Well, I had my car in low gear. I gave him a shove, maybe of 20 feet or so, and I stayed back away from him. He rolled, and when he got to the avenue, he turned the corner. I didn't even plan on going down the avenue. I was headed south on North Water."
When he saw the Weller car strike the plaintiff he turned west on Wisconsin avenue. He testified that he gave the Weller car only one push. He testified upon cross-examination that he pushed the car about 20 feet and that then the cars separated. He was traveling slowly and in low gear.
At the close of the testimony the court directed a verdict for defendant and on June 3, 1954, entered judgment dismissing the complaint. Plaintiff appeals.
The facts as we have stated them are practically without dispute. The only conflict in the testimony is in that which refers to plaintiff's position in or outside the crosswalk when she was struck. Under the rule that we must view the evidence in a light most favorable to her, we must assume that she was within the limits of the crosswalk. That fact is immaterial, however, if she has failed to establish that Nutt was guilty of causal negligence.
The question in this case is whether the operation of pushing the Weller car was so completed before the accident as to leave with each of the parties, Weller and Nutt, his individual and independent duty to drive carefully. Krueger v. Shufeldt, 253 Wis. 192, 33 N.W.2d 227. Weller could not be found after the accident and, therefore, was not available to testify. There is therefore, no testimony to indicate whether his car proceeded forward under its own power or was driven forward by momentum after it was given the single push by Nutt's car. The undisputed fact is that Weller proceeded forward a distance of approximately 60 feet to the northwest corner of the intersection and then turned west independently of and without any contact with the Nutt car. It does not appear that after Nutt pushed the Weller car he exercised or could have exercised any control over the movement of the Weller car. The injuries sustained by the plaintiff were not in any sense established as the result of the shove which Nutt gave the Weller car.
An action for damages on the ground of negligence depends on failure of duty of the defendant — failure to exercise ordinary care. There is no evidence in this case to establish any such fault on the part of Nutt.
By the Court. — Judgment affirmed.