Opinion
November 24, 1964 —
January 5, 1965.
APPEAL from a judgment of the circuit court for Waukesha county: WILLIAM E. GRAMLING, Circuit Judge. Affirmed.
For the appellants there was a brief by Allan Storck of Mayville, and oral argument by Robert E. Storck.
For the respondents there was a brief by Grootemaat, Cook Franke, attorneys, and Francis R. Croak of counsel, all of Milwaukee, and oral argument by Mr. Croak.
On May 12, 1958, appellant Herman Schucht was hauling gravel in his 1956-GMC dump truck to a new subdivision development for street-grading purposes. On one particular dumping run, Schucht was moving forward at three or four miles an hour with the box elevated about half way, when the truck tipped over on its right side, crushing the automobile of the respondent, Malcolm Guinther. Guinther and Schucht were the only witnesses to the accident. On previous runs, Schucht had dumped between 10 and 15 loads. The truck did not require repairs after it was lifted off the car the next day, and Schucht continued hauling gravel. On July 1st he traded in the truck which had a "ram" or "hoist" on each side to raise and lower the box, and purchased a new truck which had only a single "ram." John Ratz purchased the truck on July 26th. He testified that when he bought it the right ram was being repaired and that he noticed a "malfunction" of the ram as soon as he began using the vehicle. About six days after the acquisition, the right ram collapsed causing the truck to tip over on its right side.
Dale Downing, an attorney who was in the real-estate business with respondent, testified that sometime between two and 10 days after the accident Schucht told him "that this is the third time he had trouble with the dump ramps [rams], and the next truck I purchase is going to have a single ramp [ram]." Appellant did not recall any such conversation.
Respondents Guinther and the Newark Insurance Company, the collision insurer of his automobile, sued the appellant and his liability insurer, Herman Mutual Insurance Company, Inc., to recover for the damage done to the vehicle. The case was tried to the court and appellants appeal from the judgment finding Schucht negligent and awarding damages to the plaintiffs.
Further facts will be stated in the opinion.
The sole issue presented on this appeal is whether the evidence sustains the trial court's finding that Schucht was causally negligent in operating his truck with a defective hoist mechanism. It is axiomatic that the trial court's findings will not be disturbed unless they are against the great weight and clear preponderance of the evidence. The evidence must be reviewed from the standpoint most favorable to respondent. In finding Schucht negligent, the trial judge admittedly relied heavily on the testimony of Downing and Ratz. Since their combined testimony is the only evidence introduced from which it could be inferred that there actually was a defect in the ram, and further since Downing's testimony was the only evidence which would indicate that Schucht was aware of any defect, the judgment must stand or fall on the sufficiency of this evidence.
Tiedeman v. Middleton (1964), 25 Wis.2d 443, 130 N.W.2d 783; Estate of Beat (1964), 25 Wis.2d 315, 130 N.W.2d 739.
Ruid v. Davis (1959), 8 Wis.2d 288, 99 N.W.2d 129; Henthorn v. M. G. C. Corp. (1957), 1 Wis.2d 180, 83 N.W.2d 759.
Appellants assail the credibility of Downing's testimony in several respects. First, appellants argue that the reference on direct examination to "ramps" rather than "rams" indicates a vague recollection on the part of the witness. This highly technical argument ignores the sum and substance of the testimony. Furthermore, on cross-examination Downing correctly referred to the mechanism as a "ram." Second, appellant Schucht argues that his own testimony that he did not remember speaking to Downing and that he had never had any trouble with the ram sufficiently rebutted Downing's story. A mere failure by Schucht to recall any conversation does not cast fatal doubt upon Downing's testimony. An issue of credibility was fairly raised to be resolved by the trier of fact. Furthermore, Schucht's testimony that he had no previous trouble with the ram does not of itself negate Downing's story. The trier of fact judges the credibility the witnesses and the weight of the testimony. Downing's recollection is consistent with Ratz's assertion that the right ram was defective when he purchased the truck and that it ultimately collapsed, and the trial judge could reasonably rely on his testimony. Third, appellants claim that developments subsequent to the accident wherein the truck neither required repairs nor experienced further trouble controvert Downing's testimony. That the ram was being repaired when Ratz obtained the truck and that the ram subsequently fell apart, tend to refute Schucht's story and the judge could rightly have placed greater reliance on this evidence.
Ace Associates v. Nagy (1961), 13 Wis.2d 612, 109 N.W.2d 359; Estate of Fillar (1960), 10 Wis.2d 141, 102 N.W.2d 210.
Appellants next urge that Ratz's testimony concerning the troubles he had with the truck was immaterial because it related to facts too remote from the accident in point of time. Whether tiffs evidence is to be rejected rests largely in the discretion of the trial court. Ratz purchased the truck about two and a quarter months after the accident and began noticing difficulties immediately thereafter. The ram completely gave way a short time after that. It cannot be said, on these facts, that the trial court abused its discretion in admitting Ratz's testimony.
Neumann v. Evans (1956), 272 Wis. 579, 76 N.W.2d 322.
Appellants finally contend that since Schucht provided a "logical explanation" for the accident, i.e., the pitch of the road combined with a soft spot in the street, the trial court's finding was based on pure conjecture or speculation. The record is barren of any evidence which would sustain Schucht's explanation. The fact that there was a four-to-six-inch gouge in the road at the place the right rear wheel rested does not of itself prove that the road contained a soft spot. The indention could have been caused merely by the overturning of the truck which was carrying a 15-ton load, regardless of the firmness of the ground.
Relying on Frenzel v. First National Ins. Co. (1954), 267 Wis. 642, 66 N.W.2d 679.
In substance, this case turns on the credibility of the witnesses and the inferences to be drawn from the evidence. It is the function of the trier of fact to pass on such credibility and to weigh and draw the inferences. Deference should be paid to the trial court's judgment in this case. Despite the conflicting evidence, the judicial mind, upon consideration of the evidence as a whole, could have reasonably arrived at the same result reached below. By the Court. — Judgment affirmed.
C. Hennecke Co. v. Cardinal Boiler Welding Corp. (1962), 16 Wis.2d 493, 114 N.W.2d 869; Estate of Larsen (1959), 7 Wis.2d 263, 96 N.W.2d 489.