Opinion
December 1, 1949 —
December 30, 1949.
APPEAL from a judgment of the circuit court for Marathon county: GERALD J. BOILEAU, Circuit Judge. Affirmed.
For the appellant there was a brief by Genrich Terwilliger, attorneys, and Emil A. Wakeen and Walter H. Piehler of counsel, all of Wausau, and oral argument by Herbert Terwilliger.
For the respondent there was a brief by Gorman Gorman of Wausau, and oral argument by E. P. Gorman.
The action was commenced October 15, 1948, for damages sustained in an automobile accident. Plaintiff is the administrator de bonis non of the owner of the automobile who was killed in the accident. Defendant is an insurance company which had executed a liability policy whereby it contracted to pay any and all damages, within limits not material here, sustained by any person as a result of the negligent operation of this automobile by anyone with the owner's consent. Judgment was entered June 14, 1949.
Donald Masanz was killed when his automobile, driven by a friend named Gorman, ran off the road. Several young people were returning from a dance in Masanz' car. Masanz became tired and asked Gorman to drive. They changed places and proceeded on a perfectly straight road with a hard surface covered by light gravel or rotten stone. The road ended when it joined another highway in a "T," three quarters of a mile from the place where Gorman took the wheel. Gorman drove off the end of the "T," into a ditch and hit a telephone pole. Masanz was killed. The other occupants of the car had all relaxed and were aroused only by the crash. There was evidence of skid marks leading back from where the car rested after the accident for a distance of from fifty to ninety feet. Gorman had been seen drinking beer at the dance but there was no testimony concerning the number of drinks and none that he was at all affected by them, nor that he was tired or sleepy. There was no evidence of excessive speed and it affirmatively appeared that no one had disapproved of the way in which he operated the automobile.
All the testimony was adduced by plaintiff. Gorman was not called as a witness. When plaintiff closed, defendant immediately rested and moved for a directed verdict. The motion was denied and the case was sent to the jury. Only one question on negligence was submitted, that as to management and control. The jury answered that Gorman was negligent in this respect and that the collision was the natural result of such negligence. It also found that Masanz had not assumed this risk.
Appellant submits that there was no evidence to go to the jury on the question of negligence and that Masanz assumed the risk of such negligence as there may have been.
Counsel for plaintiff contends that he is not seeking recovery on the principle of res ipsa loquitur but his oral argument and his brief, in spite of the disclaimer, show dependence upon it. He quotes at length from Dunham v. Wisconsin Gas Electric Co. (1938), 228 Wis. 250, 280 N.W. 291, which was expressly decided upon that principle. This court has not applied res ipsa loquitur to automobile cases, recognizing that it is a principle easily abused and difficult to control, and it is not necessary to rely on it here because there is evidence sufficient to take the question of negligence to the jury. The "skid marks" or marks of dragging wheels show that Gorman was aware that the road ended but was not properly correlating his speed and his brakes. That testimony bears directly on the management and control of the automobile and removes the cause of the accident from the realm of mere speculation. It is at least as strong as the testimony in Sullivan v. Minneapolis, St. P. S. S. M. R. Co. (1918), 167 Wis. 518, 167 N.W. 311, which was held sufficient to support a jury's findings that a fall from a car had occurred, which caused an injury, which injury resulted in death.
Respecting defendant's argument that Masanz must be held to have assumed the risk of Gorman's negligence, whatever that might be, we consider that the skid marks are not of a length or character to establish, as a matter of law, that the negligence was of such duration that Masanz was bound either to observe it and act for his own protection or to assume the risk thereof.
We hold, therefore, that the verdict is supported by the evidence and the judgment should be affirmed.
By the Court. — Judgment affirmed.