Opinion
No. 147.
Argued September 9, 1970. —
Decided October 6, 1970.
APPEAL from a judgment of the circuit court for Milwaukee county: WILLIAM I. O'NEILL, Circuit Judge. Affirmed.
For the appellant there was a brief and oral argument by Richard J. Steinberg of Milwaukee.
For the respondent there was a brief by Merten, Connell Sisolak of Milwaukee, and oral argument by Walter L. Merten.
Facts.
Plaintiff-appellant enrolled in a beginners' judo class offered by defendant-respondent. During the fifth lesson, the plaintiff was injured during a demonstration of the "osotogari throw" by a substitute instructor. The regular class instructor, leaving the class to attend to an injured student, had designated a substitute instructor to "take the mat," that is, to continue the class session. The plaintiff-appellant claims the substitution of instructors constituted negligence, a claim based not on what the substitute did do or did not do, but on his lack of qualifications to serve as an instructor.
The substitute instructor was a "first-degree black belt," a rank or status certifying to and requiring weekly school attendance, knowledge as to lower ranks, understanding of judo training and instructional methods, and qualifying as able to conduct classes with the approval of the ranking "yudansha" or black belt instructor. The substitute had assisted in instructing judo classes at the YMCA, including the class attended by plaintiff-appellant. The highest ranking black belt instructor in Wisconsin testified that the substitute taught the "osotogari throw" as well as any instructor he knew. One month after the injury, the substitute was hired by a suburban school system as a judo instructor.
From a jury verdict finding no negligence on the part of the YMCA, and the trial court judgment based thereon, the plaintiff appeals.
Considering the testimony, the jury found no negligence on the part of the YMCA in the conducting of the beginners' judo class. Upholding that verdict, the trial court commented: ". . . if the jury had returned a verdict finding the YMCA guilty of negligence, it [the trial court] would have granted a directed verdict. . . ." Reviewing the record, we find no reason to quarrel with either judge or jury. As the jury found, there was credible evidence supporting a no-negligence finding. As the judge commented, it is difficult to find any evidence that would support a different conclusion.
Defendant's request for double costs, based on incompleteness of appellant's brief and appendix, is denied. Since double costs are a discretionary penalty, we elect not to have the plaintiff thrown for this additional loss.
By the Court. — Judgment affirmed, with costs.