Opinion
January 8, 1957 —
February 5, 1957.
APPEAL from a judgment of the circuit court for Milwaukee county: MICHAEL T. SULLIVAN, Circuit Judge. Affirmed in part; reversed in part.
For the appellant there were briefs by Kivett Kasdorf, attorneys, and Clifford C. Kasdorf and Alan M. Clack of counsel, all of Milwaukee, and oral argument by Clifford C. Kasdorf.
For the respondent Otto Mayr there was a brief and oral argument by Paul Pike Pullen of Milwaukee.
For the respondent Mutual Automobile Insurance Company there was a brief by Holden Schlosser of Sheboygan, and oral argument by Wayne W. Schlosser.
For the respondent Roger Eternick there was a brief by Quarles, Spence Quarles, attorneys, and Walter P. Rynkiewicz of counsel, all of Milwaukee, and oral argument by Mr. Rynkiewicz.
Action begun March 30, 1955, by Otto Mayr against Milwaukee Suburban Transport Corporation, Mutual Auto Insurance Company of Wisconsin, and Roger Eternick to recover damages for personal injuries. Roger Eternick cross-complained against the Transport Corporation for personal injury and property damage and he and Mutual Auto cross-complained for contribution in the event they were held liable to plaintiff. The Transport Corporation also cross-complained for contribution. judgment was granted in favor of Otto Mayr against the Transport Corporation, Eternick, and Mutual Auto; in favor of Roger Eternick and against the Transport Corporation; and for contribution between the Transport Corporation and Mutual Auto and Eternick with respect to any amount paid to Mayr. The Transport Corporation appeals from the portions of the judgment against it. Eternick and Mutual Auto move for review with respect to certain answers in the special verdict.
On July 17, 1954, there was a collision between a westbound streetcar of the appellant and the automobile of respondent Roger Eternick. Respondent Otto Mayr was a passenger in the Eternick car and Mutual Auto was the liability insurer of Roger Eternick.
The collision occurred approximately 50 feet west of the intersection of Thirty-Seventh street and National avenue in the city of West Allis. Eternick had been traveling east on National avenue and came to a stop behind an eastbound streetcar. Traffic was heavy and other cars were immediately behind Eternick. While the testimony is not entirely consistent, it was apparently found by the jury that the Eternick car was stopped with its left side a few inches north of the unmarked center line of National avenue, and remained stopped in that position until the collision. Appellant's westbound streetcar made a stop on National avenue east of Thirty-Seventh street, then started west and accelerated while crossing Thirty-Seventh street and was going at approximately 15 miles an hour as it met and passed the eastbound streetcar. It is undisputed that the step of the exit door on the south side and near the east end of the westbound streetcar was hanging partially open and extending out approximately six or seven inches. Kenneth Link, a motorist who was following the westbound streetcar, saw the step in that position approximately two blocks east of Thirty-Seventh street. When operating properly this step folds up against the streetcar and just below the exit door when the exit door is closed. When in that position the step is on a line with the widest portion of the streetcar. If the step were in its proper position it would be 1.07 feet from the center of National avenue at the point of collision. With the step out six inches from its regular position it would be 6 7/8 inches north of the center of the street. The westbound streetcar was swaying to some degree. It met and was passing the Eternick automobile when its protruding step hooked the inside of the rear of the left front fender of the Eternick car and spun the car part way around, causing property damage and personal injuries.
The east end of the streetcar was the number two end. The motorman testified that some half hour or forty-five minutes before the collision he had reached the opposite end of his run. He had been operating the car until then at the number two end. He made the necessary changes to reverse the car and testified he used this particular exit door and closed it. He testified that he observed that the door was closed and that the step was folded up against the car. It is clear from a photograph of the car that it would be difficult to see the step from the inside with the door shut. He testified that no accident occurred to the streetcar from the time he left the number two end until the collision with Eternick and this exit door was not used during that time. The mechanism for controlling the door and step was described by employees of the Transport Corporation. When the equipment is in order, the door and step work together. The Transport Corporation offered no evidence of possible causes of the step being partially down at the time the door was closed. On cross-examination one of its employees said it might happen if a certain nut were loose or if certain pins had dropped out. On inspection of the car by the Transport Corporation after the collision, all pins were in place, but there apparently was no examination of the nut. After the accident it was observed that there was damage to the equipment which controls the door itself. The damaged portions were located on the side of the car near the point of impact.
The motorman testified he did not see Eternick until he was about opposite the west end of the eastbound streetcar. He did not slow down but clanged his bell. After the collision he said he was in a hurry to get his passengers to the ball game. When he again proceeded west, he did so with a piece of Eternick's fender sticking out from the mechanism of the exit door.
The jury found that the motorman was operating the streetcar with a defective step, that he ought to have known of its condition, that he was negligent in operating the car with a defective step, that this negligence was a cause of the collision, that the motorman was also negligent with respect to management and control and lookout, and both such elements of negligence were causes of the collision. The jury found that Eternick was not negligent with respect to management and control or lookout. The court made the finding that Eternick was negligent in failing to operate his automobile in the right half of the street. The jury found that such negligence on the part of Eternick was not a cause of the collision but nevertheless apportioned negligence 90 per cent to the motorman and 10 per cent to Eternick. On motions after verdict, the court changed the answer as to Eternick's negligence being a cause of the collision from "No" to "Yes."
The appellant asserts that the jury must believe the testimony of its motorman that he saw the step in its proper position at the opposite end of the run. Appellant argues that there being no evidence of any intervening occurrence sufficient to put the motorman on notice of damage to the step, the jury's finding that the motorman ought to have known of the defective step before the collision was unsupported by evidence. The appellant also challenges the finding that the partially open position of the step was a cause of the collision and asserts that the jury's findings of negligence on the part of the motorman as to lookout and management and control were unsupported. Mutual Auto asserts that there is no credible evidence that Eternick's negligence in failing to operate his automobile on the right half of the street was causal.
The jury could properly draw the inference that the motorman ought to have known of the condition of the step. It had not been used since the motorman had last been stationed at the number two end of the car. The step and the door were controlled by a set of rods and levers which were described and exhibited to the jury. When working properly, the door and the step must work together, and the step does not go partially down unless the door is open to the same degree. The step was at about a 45-degree angle and extending about 6 or 7 inches out from the car. It was seen in that position by Eternick just before the collision and by Link two blocks east of the point of impact. There was no testimony that the door was open until after the collision. The motorman had removed the handle which controls the door when leaving the number two end. There was no testimony that the door was or could have been opened by one of the passengers and the jury might infer that if the door had been open for two blocks or more, the motorman should have noticed it. The only way in which the step could have been part way down without the door being open, as far as the evidence shows, was for a particular nut to become loose, and appellant offered no testimony whether or not this nut was inspected after the accident. The rods and levers controlling the door and step had not been in use since the motorman had been operating from the number two end.
This is a proper situation in which to apply the doctrine of res ipsa loquitur, and the findings of negligence with reference to the step are supported in the light of that doctrine. The devices for controlling the door and step were in the exclusive control of the motorman. In the ordinary course of things, and assuming due care on his part, the step is turned up close to the streetcar at all times while in motion. Appellant's shop employees gave the jury a detailed description of the devices controlling the door and step, but failed to explain how the step could be down if the motorman was free from negligence. Their testimony tended mainly to show that if the step was part way down, the door must not have been properly closed. These employees are thoroughly familiar with the controls and also had a full opportunity to inspect the streetcar immediately after the collision.
The decision in Dunham v. Wisconsin Gas Electric Co. 228 Wis. 250, 256, 280 N.W. 291, is in point. There the plaintiff pedestrian was struck and tripped by a wire which trailed from the back of defendant's truck. Defendant's driver did not know the wire was trailing. The jury found negligence. This court applied the rule that "`when the thing is shown to be under the management of the defendant or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.'"
The jury heard the motorman's testimony that the step was in its closed position at the opposite end of the previous run. His experience could be deemed somewhat limited and he was an "extra" rather than a "regular" operator. He had an obvious interest in demonstrating that he had not been careless. It would have been difficult for him to observe the position of the step from the inside of the streetcar by looking through the closed door. These factors evidently caused the jury to disbelieve his testimony that the step was in its proper place at the end of the previous run.
There can be no doubt but that the protrusion of the step six inches farther than the widest part of the rest of the streetcar and six inches farther than it normally would protrude was a cause of the collision. It is virtually undisputed that had the step been closed in its proper position, no collision would have occurred.
The motorman testified that he first saw the Eternick car as he approached the west end of the eastbound streetcar. Assuming the fact to be, as the jury could properly and apparently did find, that Eternick was at all times stationary with the left side of his car protruding several inches over the center line of the street and in view of the testimony of the motorist Link who was following the westbound streetcar, to the effect that he was able to see the Eternick car from his position behind the westbound streetcar, it is clear that the jury could properly find as it did that the motorman was not sufficiently observant as he approached the point of collision. There is also testimony that after the motorman did see the Eternick car he continued westward without stopping or slackening his speed until after he heard the crash. Certainly with the Eternick car protruding some seven inches over the center line of the street so that the clearance between the westbound streetcar and the Eternick car was reduced from the one foot it would have been if Eternick were on his own side of the street to a few inches, and since the streetcar was swaying as it moved along, it was certainly proper for the jury to find that the motorman was negligent in failing to slow down or stop the streetcar until he could determine that he could pass the Eternick car in safety.
As to the claim of Mutual Auto that the position of Roger Eternick on the street was not a cause of the collision, Eternick evidently misjudged his position and the location of the center line. While it appears that he did remain stationary and that he had little or no room in front of or behind him in which to maneuver his automobile, his stopping in a position causing danger of a collision with those rightfully using the north half of the street was causal negligence. Had he stopped his car on his proper side of the road the collision would not have occurred just as it would not have occurred if the streetcar step had been in its proper position or if the motorman had stopped or slowed his car until he could determine that passage could be made in safety.
Judgment was entered in favor of Eternick and against the Transport Corporation for 90 per cent of the total damages found to have been suffered by Eternick. While it is our view that the evidence was sufficient to sustain the various findings of causal negligence on the part of the Transport Corporation, the jury's answer apportioning negligence cannot support the judgment in favor of Eternick. As matters stood when the jury answered question No. 9, apportioning negligence, the jury had found causal negligence on the part of the motorman in three respects; the court had answered question No. 7 (c), finding that Eternick was negligent with respect to failing to operate his automobile on the right half of the street; the jury had exonerated him from negligence as to management and control, and lookout; and the jury had answered question 8 (c) so as to find that the negligence of Eternick with respect to failing to operate his automobile on the right half of the street was not a cause of the collision. The jury should either have made answers finding causal negligence in at least one of the three respects inquired about or have omitted an answer to the apportionment question. As the verdict stood when returned it was inconsistent. It was also erroneous because Eternick's negligence in failing to operate his automobile on the right half of the street was a cause of the collision as a matter of law and the court correctly changed the answer to question No. 8 (c) accordingly. Thus the court's action corrected the verdict in that respect but could not resolve the inconsistency which existed when the verdict was returned because more than one element of negligence had been submitted. Statz v. Pohl, 266 Wis. 23, 32a, 62 N.W.2d 556, 63 N.W.2d 711 (on motion for rehearing).
Because some causal negligence on the part of Eternick was properly found by the court the judgment is supported by the verdict in so far as it awards recovery in favor of Mayr and against Eternick and his insurer as well as the Transport Corporation and for contribution among the defendants but it follows that there must be a new trial as to the issues relating to liability of the Transport Corporation for Eternick's damages.
Appellant's appendix was insufficient. In particular it failed to include the special verdict and an index of exhibits. Appellant's printing costs will therefore be limited to its briefs exclusive of the appendix.
By the Court. — The judgment in so far as it adjudges recovery by Roger Eternick of $491.65 from the Milwaukee Suburban Transport Corporation is reversed, and the cause is remanded for a new trial on all issues material thereto except damages; in all other respects the judgment is affirmed. Appellant's costs for printing are limited to its briefs exclusive of the appendix.
I must dissent because I am unable to find in the record evidence to support the finding in the special verdict that the motorman knew or should have known of the defective step. For him to be charged with such knowledge the defect must have existed long enough for him to become aware of it in the reasonable performance of his duties. The jury may have disbelieved his story that when he started his return trip the step was properly closed, but such disbelief does not of itself establish the contrary. I consider the plaintiff's proof fails in the essential element of the length of time before the accident during which the defect was discoverable.
I am authorized to state that Mr. Justice STEINLE and Mr. Justice WINGERT are of the same opinion.