Summary
In Brunner v. Van Hoof (1958), 4 Wis.2d 459, 464, 90 N.W.2d 551, we pointed out, "... the doctrine may be applied in cases where evidence of specific negligence is introduced" and attempted to state when the doctrine was inapplicable in terms of a prima facie case.
Summary of this case from Fehrman v. SmirlOpinion
May 8, 1958 —
June 3, 1958.
APPEAL from a judgment of the circuit court for Oconto county: AROLD F. MURPHY, Circuit Judge. Affirmed.
For the appellants there was a brief by Everson, Ryan, Whitney O'Melia of Green Bay, and oral argument by E. L. Everson and James L. Everson.
For the respondent there was a brief by Lehner, Lehner Behling of Oconto Falls, and oral argument by Howard N. Lehner.
The plaintiff brings this suit as special administrator of the estate of Gerald A. Lemirande, who was accidentally killed on the afternoon of January 10, 1957, on County Trunk Highway B approximately three miles north of the village of Spruce, Oconto county, Wisconsin, when a two-wheel trailer hitched to the defendant Raymond Van Hoof's auto disengaged, invaded the deceased's lane of travel, and collided with the deceased's truck.
The defendant Van Hoof, insured by the Farmers Mutual Automobile Insurance Company, borrowed a trailer from one Frank Wesley in order to transport a fishing shanty to Kelly lake. The tongue of the trailer had mounted on it a Fulton-type socket for a ball-and-socket connection. The Van Hoof car had mounted on its rear frame and bumper a ball hitch, not a mate to the Fulton socket and not previously used with it. The Fulton socket was without a safety lock, which had been removed previously by Wesley, and the purpose of which was to prevent the handwheel or screw, which held the socket over the ball of the hitch, from becoming loose. Van Hoof and Carl Lemirande, a friend, had built a fishing shanty and as it neared completion it was necessary to take it to Vince Lemirande's farm to complete. Wesley offered his trailer. About three days prior to the accident the shanty was loaded on Wesley's trailer and the trailer connected to Wesley's car and pulled to the Vince Lemirande farm. On the day of the accident Van Hoof and Carl Lemirande drove to Vince Lemirande's farm, put some finishing touches to the shanty, fastened it to the trailer, and then hooked the trailer onto the Van Hoof car. Van Hoof turned the handwheel screw, which drew the socket around the ball, and tested the entire assembly by rocking it up and down several times.
Van Hoof and Carl Lemirande then drove three miles to the village of Spruce, where they met Wesley. Van Hoof again checked the trailer-hitch connection and found it satisfactory and the handwheel tight. The parties continued north toward Kelly lake on County Highway B, with defendant Van Hoof driving at a speed of about 35 miles per hour. About three miles north of Spruce there was a slight rise or hill at the top of which was a frost boil which Van Hoof did not see. As the Van Hoof car went over the frost boil it rocked sharply. About this time the deceased, Gerald Lemirande, was driving his pickup truck southerly on the west side of County Highway B. The trailer became uncoupled and traveled over the center line of the highway, invading the deceased's lane of travel. The fishing shanty and trailer struck the left side of the deceased's truck, killing the deceased instantly.
The deceased was thirty-eight years of age and left a widow thirty-eight years of age and minor children surviving. Van Hoof and Carl Lemirande both testified there was no trouble with the trailer or hitch up to the time of the accident and the sound of the crash was the first knowledge they had that anything was wrong.
The issues were presented to the jury on a special verdict. The question of causal negligence of the defendant was submitted in two questions as follows:
"First question: Was the defendant, Raymond Van Hoof, negligent in connecting his Chevrolet automobile with the Wesley trailer in either or both of the following respects:
"(a) In respect to using the Wesley trailer hitch in connection with the Van Hoof ball joint?
"(b) In respect to using the Wesley trailer hitch without a safety lock?
"Second question: If you answer `Yes' to either or both subdivisions of the first question, then answer this question: Was such negligence as you find a cause of the detachment of the trailer from the automobile and consequent collision with the Lemirande truck, —
"(a) In respect to using the Wesley trailer hitch in connection with the Van Hoof ball joint?
"(b) In respect to using the Wesley trailer hitch without a safety lock?"
Subdivision (a) of questions One and Two was answered "No," and subdivision (b) of the first and second questions was answered "Yes."
The jury also found $15,000 for pecuniary loss and $2,500 for loss of society and companionship to the widow. The court upon agreement of the parties found medical and funeral expenses of $990 and damages to the truck of $510.
The trial court as part of its instructions to the jury charged:
"The first and second questions must be answered either `Yes' or `No.' If you are satisfied by the greater weight of the credible evidence in the case that the thing inquired about in these questions either existed or occurred, you will answer the question `Yes.' If you are not so satisfied, you will answer it `No.' . . .
"You are instructed that in order to answer subdivision (a) of this question `Yes,' you must be convinced to a reasonable certainty by the greater weight of the credible evidence or from the reasonable inferences drawn from the evidence that the defendant, Raymond Van Hoof, either knew, or in the exercise of ordinary care, should have known, that the size or construction of the Van Hoof ball was such as to make it dangerous to use the Van Hoof ball in conjunction with the trailer hitch.
"You are instructed that in order to answer subdivision (b) of the first question `Yes,' you must be convinced to a reasonable certainty by the greater weight of the credible evidence or from inferences reasonably drawn from the evidence that the defendant, Van Hoof, either knew that the Wesley hitch was defective because of the absence of a locking device, or that in the exercise of ordinary care he should have known that the Wesley hitch was defective because of the absence of such locking device, and further that he knew, or in the exercise of ordinary care should have known, that it was dangerous to use the Wesley hitch without such locking device.
"You are instructed that where the car attached to the trailer by a hitch is under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if the defendant who had the management and control of the combination vehicle used proper care, the accident itself affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from negligence of the defendant."
The defendant in four alternative motions after verdict asked the court to change the answer from "Yes" to "No" in subdivision (b) of the first and second questions and for a new trial as to the issue of liability only and for a new trial on the issues of liability and damages. The trial court denied the defendant's motions and granted the plaintiff's motion for judgment on the verdict. Judgment was accordingly entered from which the defendants appeal.
The two main questions presented are: (1) Did the trial court err in giving unrequested instructions on res ipsa loquitur in view of the evidence and where specific acts of negligence were inquired about in the verdict and no general question on negligence was submitted? (2) Did the giving of such res ipsa loquitur instructions constitute prejudicial error?
The appellant's first contention was the res ipsa loquitur instruction although correct in form was not applicable. The width and breadth of res ipsa loquitur from the strict to the liberal rules are extensively annotated in 33 A.L.R.2d 793 et seq. Under the authorities adopting the strict rule no specific acts of negligence can be shown without precluding reliance upon the doctrine. Under the liberal rule, which Wisconsin follows, the doctrine may be applied in cases where evidence of specific negligence is introduced. Commerce Ins. Co. v. Merrill Gas Co. (1955), 271 Wis. 159, 72 N.W.2d 771; Dunham v. Wisconsin Gas Electric Co. (1938), 228 Wis. 250, 280 N.W. 291. But under the liberal rule there is a point beyond which sufficient specific acts of negligence rule out the availability of the doctrine of res ipsa loquitur. When specific acts of negligence are shown making a prima facie case by the plaintiff and the inference of negligence is met and overcome by the evidence on the part of the defendant the doctrine of res ipsa loquitur is not applicable. Gay v. Milwaukee E. R. L. Co. (1909), 138 Wis. 348, 120 N.W. 283.
The evidence produced by the plaintiff showed the hitch was defective because the safety lock was missing and as a consequence the hand screw was free to loosen. The Van Hoof ball was of a slightly different shape than the Wesley ball which fitted the Wesley hitch. There was also a variation in the clamping point on the two balls. The ball-and-hitch combination used by the defendant moved more freely than the Wesley ball and hitch used in combination. The postaccident condition of the hitch assembly showed no structural failure or breakdown of any part. This was sufficient evidence of specific negligence with the other evidence to make the doctrine of res ipsa loquitur inapplicable.
The appellant contends the inapplicable instruction was an invitation to the jury to find for the respondent on the negligence question. There was ample credible evidence of specific negligence to support the jury finding of negligence without any reference to the doctrine or the inference to be drawn from it. The jury distinguished between the two questions of negligence submitted. The jury found defendant Van Hoof negligent in using the Wesley, or Fulton, trailer hitch without a safety lock. There was undisputed testimony that the defendant had a lock on his boat-trailer hitch but he did not know there was supposed to be a locking device on the Wesley hitch when he used it. The defendant knew Wesley had used the hitch with his own ball combination many times. This was the first time the defendant had used the Wesley hitch. There was undisputed evidence that had the Wesley hitch been equipped with a safety lock the hand screw could not have loosened and the ball and clamp could not have become uncoupled. The appellant produced evidence that Van Hoof put the assembly together and turned the wheelscrew tight. He tested the combination by shaking it up and down several times and inspected it at Spruce before leaving for Kelly lake. In a close case the effect of allowing res ipsa loquitur to add or strengthen the permissible inference which can be drawn from evidence introduced by specific negligence makes a jury finding of that specific negligence more probable. But this is not a close case on the evidence.
The jury was instructed properly on negligence and no instructions on negligence were requested or objections thereto raised by the defendant. The position of the inapplicable res ipsa loquitur between that part of the instruction on negligence and the part of the instruction on cause is not necessarily prejudicial. The effect of the instructions as a whole on the jury in the light of the evidence produced is the important element in considering whether there was prejudicial error.
We do not agree with the appellant's contention that the inapplicable instruction affected the jury's determination on the issue of ordinary care in finding Van Hoof negligent in using the hitch without a safety lock. The doctrine supplied only an inference of negligence for the jury to accept or reject. If the instruction on res ipsa loquitur was an invitation to the jury to find negligence it is apparent from the evidence and the findings that the jury did not accept the invitation nor was it misled.
By the Court. — Judgment affirmed.
I cannot agree that the erroneous instruction on res ipsa loquitur was not prejudicial in the instant case.
The only item of negligence found against the defendant Van Hoof was in "using the Wesley trailer hitch without a safety lock" (sub. (b) of the first question of the verdict).
As to the subdivision of the verdict dealing with this particular item of negligence the trial court instructed the jury as follows:
"You are instructed that in order to answer subdivision (b) of the first question `Yes,' you must be convinced to a reasonable certainty by the greater weight of the credible evidence or from inferences reasonably drawn from the evidence that the defendant, Van Hoof, either knew that the Wesley hitch was defective because of the absence of a locking device, or that in the exercise of ordinary care he should have known that the Wesley hitch was defective because of the absence of such locking device, and further that he knew, or in the exercise of ordinary care should have known, that it was dangerous to use the Wesley hitch without such locking device.
"You are instructed that where the car attached to the trailer by a hitch is under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if the defendant who had the management and control of the combination vehicle used proper care, the accident itself affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from negligence of the defendant." (Italics supplied.)
The effect of such instruction taken as a whole is to tell the jury that in order to answer sub. (b) of the first question of the verdict "Yes" the jury must find either that Van Hoof knew or should have known of the absence of the locking device, but that this could be inferred from the happening of the accident itself. However, the happening of the accident has no relevancy whatever on the issue of Van Hoof's actual or constructive knowledge of the absence of a locking device. It is hard to conceive how such an erroneous instruction could fail to be prejudicial.
The fact that the jury answered sub. (a) of the first question of the verdict in Van Hoof's favor is wholly a non sequitur. This is because the erroneous instruction apparently only related to sub. (b) or at least the jury were warranted in so assuming.
Because of the prejudicial nature of the attacked instruction the judgment should be reversed, and the cause remanded for a new trial.
I am authorized to state that Mr. Justice BROWN and Mr. Justice WINGERT concur in this dissent.