Sunday, February 3, 2013

Nowatske v. Osterloh case brief

Nowatske v. Osterloh case summary
198 Wis. 2d.419, 543 N.W.2d 265 (1996)
Tort Law

PROCEDURAL HISTORY: Defendant truck owner appealed an order of the Circuit Court for Winnebago County (Wisconsin), which entered judgment in favor of plaintiff, the administrator of a decedent's estate, in an action for damages after the decedent, a pedestrian, was struck by the truck owner's vehicle while crossing the street. The truck owner contended that the jury improperly found that the driver was negligent and that the decedent was not guilty of negligence.

-The truck driver was proceeding north on a residential street at approximately 15 miles per hour.
-The decedent was crossing the street 300 feet ahead at a diagonal to the northeast.
-Ten feet from the accident site, the decedent was directly in front of the truck.
-The driver steered his truck to the west to avoid any possible collision.
- However, at the same time the decedent stepped backwards and placed himself in front of the truck. The driver applied his brakes but was unable to avoid a collision.
The administrator filed suit against the truck owner.
-The jury returned a special verdict that found the driver negligent as to speed, lookout, and control. -The jury found that the decedent was not guilty of negligence.
-The truck owner appealed and the court reversed.
-The decedent placed himself in more danger by crossing at a diagonal and precipitated the collision by stepping backwards.
The driver was driving at an acceptable speed, given that the speed limit was 25 miles per hour.

The court held that the decedent failed to exercise ordinary care and remanded with directions to dismiss the complaint.

1. The degree of care required of a pedestrian in crossing a city street may vary with circumstances, such as the angle at which he crosses and the danger of traffic; and even though the block is long and vehicles are few and the crossing is being made in daylight, the pedestrian must make an observation not only when he leaves the curb but also when he reaches the center of the street. p. 4.

2. Deceased, who was run down by a truck while he was crossing a street at a diagonal, could plainly have seen the truck had he made an observation when he reached the center of the street, but after he had passed the street center he was taken by surprise and stepped backwards directly into the path of the truck, which had swerved to avoid a collision.  
Held, that the deceased was guilty of contributory negligence as a matter of law, because either he made no observation when he was in the center of the street or, if he did make one, he stepped in front of the oncoming truck. [Ford v. Werth, 197 Wis. 211, distinguished.] pp. 5, 6.

The court reversed the judgment of the trial court and remanded with directions to dismiss the complaint.

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