#### Morgan, Appellant, vs. Pleshek, Respondent.

*December 16, 1903*

January *12, 1904.*

*Negligence: Personal injuries: Contributory negligence: Evidence: Conflicting inference: Question for jury.*

*•*In an action for personal injury alleged to have been caused by defendant’s negligence, the evidence, stated in the opinion, considered, and *held*to present a situation from which a reasonable inference could be drawn in support of either party to the action on the question of defendant’s negligence and of plaintiff’s contributory negligence, and it was therefore error to direct a verdict.

Appeal from a judgment of the circuit conrt for Shawano county: John Goodland, Circnit Judge.

*Reversed.*

This is an action to recover for personal injuries and for damages to appellant’s property caused by respondent. Appellant alleges that the injuries were caused by respondent’s negligence and carelessness in managing his horses and coming into collision with him, causing his buggy to upset, and throwing him into the street; resulting in injuries to his body, which made him sick and prevented him from attending to his business. These charges respondent denies. It appears by the evidence that, while appellant and respondent were using the public streets of the city of Shawano, their vehicles collided, causing the accident in question. Appel-lant was in his buggy, and h§.d stopped to speak with one Holtz, on Main street at a point between the center and the west line of the street, running north and south, either near or on the south line of an alley running at right angles to the street. Respondent drove from this alley onto the street with his team of horses and lumber wagon. There was testimony tending to show that, while appellant was so occupying Main street, respondent drove out of the alley toward Main street over the sidewalk and an incline on the space between the •sidewalk and the gutter, and then into the street,* thereby col*307liding with, appellant’s vehicle, and tipping it and throwing him onto the street. Them was evidence tending to show that respondent had ample space and opportunity to drive to the north of appellant’s vehicle, and thus avoid colliding with it. Appellant testifies that his position was eight or ten feet south -of the alley line, and that he did not observe respondent until he drove into his vehicle. Other witnesses testified upon this subject, some corroborating and others contradicting the appellant as to the position of his buggy in respect to the alley line, and the space afforded respondent, in the use of the ■street, for avoiding a collision with appellant’s buggy. A number of witnesses were called by both parties, who testified to matter material to the issue, and whose evidence conflicted on important matters. At the conclusion of the •testimony, respondent’s counsel moved for a direction of the ■ verdict in his favor. The court granted the motion, and awarded judgment dismissing the complaint.

Eor the appellant there was a brief by *Dreier & Winter,*attorneys, and *Wallrich, Dillett & Larson,*of counsel, and oral argument by *M. G. Eherlein.*

For the respondent there was a brief by *E. V. Werner,*•attorney, and *E. M. Wescott,*of counsel, and oral argument !by *Mr. Werner.*

Siebeokee, J.

The complaint charges respondent with negligence in driving his team of horses, and thereby causing his wagon to collide with appellant’s buggy. It was shown that the parties were at the city of Shawano' on the -day of the accident, driving their teams, each consisting of two horses and a vehicle; that, while upon Main street, re■spondent’s wagon collided with appellant’s buggy, causing him to fall to the ground. At the time of collision, appellant had stopped his team, and was seated in the buggy, conversing with one of the witnesses (Mr. Holtz). He had driven ■ southward, crossing the lines of an alley connecting at right *308angles from tlie west with, Main street. The respondent drove from the alley toward the street,’ crossing a sidewalk and an incline toward the gutter, and onto the street. The burden of the argument in this case was directed to the inquiries whether the trial court erred in holding that the evidence did not tend to show that respondent was guilty of negligence, as charged, and whether the evidence established that appellant was guilty of negligence contributing to produce the injury-

The rule is well settled that, if there is any credible evidence in the case from which a reasonable inference may be-drawn in support of the claim of either party to the action, then the court cannot assume to decide the controversy as a matter of law. Under such circumstances, the questions of' fact must be submitted to, and determined by, a jury. *Beyer v. St. Paul F. & M. Ins. Co.*112 Wis. 138, 88 N. W. 57; *Lewis v.*Prien, 98 Wis. 87, 73 N. W. 654. The trial court held the evidence did not tend tó show that respondent was guilty of negligence in colliding with appellant’s vehicle. There was testimony in the case that appellant had crossed and driven beyond the full width of the alley to a distance of from sis to eight feet before he stopped his team on Main street, and that respondent could have cleared his buggy if' he had driven directly and straight out *into the street when*coming from the alley. Some of the witnesses who observed the parties and location of the two teams testified that there-was ample street space for a person driving from the alley to avoid encountering appellant’s buggy, and nothing to prevent driving a team of horses to the right, if necessary, in passing from the alley onto Main street. The facts established by the situation itself indicate, if the jury had found that appellant had actually passed by the alley six or eight feet, then respondent must of necessity have turned toward his buggy before colliding with him. True, there was considerable testimony tending to show that respondent endeav*309-ored to avoid coming in. contact with appellant’s veliicle winch, was clearly witbin Ms view when he approached the .street. This emphasizes the fact.that the evidence upon the ■question of negligence sharply conflicted, and that the jury might reasonably have drawn different inferences in support ■of the claims of either party. We are persuaded there was credible evidence in the case to justify the jury in drawing the inference that respondent was guilty of negligence in colliding with appellant’s buggy, and that appellant was free from contributory negligence. On the other hand, the jury would have been justified had they found no actionable negligence against respondent. This question should have been submitted to the jury, under the rule that persons using the public streets must exercise reasonable care to avoid collisions with persons or vehicles. *Stringer v. Frost,*116 Ind. 477, 19 N. E. 331; *Evans v. Adams Ex. Co.*122 Ind. 362, 23 N. E. 1039; *Vollner v. Berens,*50 Wis. 494, 7 N. W. 371; *Belton v. Baxter,*58 N. Y. 411; *Quirk v. Holt,*99 Mass. 164.

We need not call further specific attention to the evidence upon the question of appellant’s negligence as contributing to the injury. It does not appear specifically whether the court put its ruling upon this ground, or not; but, since it was included in the motion for the direction of a verdict, we must assume the court concluded that appellant was guilty of a want of ordinary care, contributing to produce the accident. If his testimony, as well as other evidence adduced, be taken as true, it cannot be said, as a matter of law, that any want of ordinary care on his part proximately contributed to the injury. If the jury had found from the testimony of appellant and others who were eyewitnesses to the occurrences that he exercised ordinary care in stopping his vehicle on the street and at the place specified, and that he was unaware of respondent’s approach or that his safety was in any way imperilled, it could not be held as conclusively established that he was guilty of want of ordinary care, con*310tributing to produce tbe accident. Yet by a different inference of fact from tbe evidence be might be deemed guilty by tbe jury of contributory negligence. Wben no conflicting, reasonable inferences can be drawn from tbe evidence as to tbe question of negligence, it is a matter of law for tbe court; but, wben tbe evidence is sucb tbat conflicting reasonable inferences may be drawn, it is a matter' for tbe jury. *Curry v. C. & N. W. R. Co.*43 Wis. 665. Tbis state of tbe evidence left tbe question of appellant’s contributory negligence uncertain, upon tbe proof, and therefore should have been submitted under proper instructions from tbe court. *Powell v. Ashland I. & S. Co.*98 Wis. 35, 73 N. W. *573; Maanum v.*Madison, 104 Wis. 272, 80 N. W. 591.

From tbis it results that tbe judgment must be reversed.

*By the Oourt.*— Tbe judgment of tbe circuit court is reversed, and tbe cause remanded for a new trial.