Booth v. Frankenstein

• Decision Date: 09 November 1932
• Citation: 245 N.W. 191,209 Wis. 362
• Parties: BOOTH v. FRANKENSTEIN.
• Court: Wisconsin Supreme Court

209 Wis. 362

245 N.W. 191

BOOTH

v.FRANKENSTEIN.

Supreme Court of Wisconsin.

Nov. 9, 1932.

Appeal from a judgment of the Circuit Court for Chippewa County; James Wickham, Circuit Judge.

Action by Clarence L. Booth against Maude Frankenstein, administratrix of the estate of Frank Belknap, deceased, in which defendant filed counterclaims. Judgment for plaintiff, and defendant appeals.--[By Editorial Staff.]

Reversed and remanded, with directions.

The action was brought on September 3, 1931, for the recovery of damages for personal injuries and damage to plaintiff's automobile, alleged to have been suffered as the result of a collision between plaintiff's truck and the automobile of defendant's intestate. The defendant administratrix interposed two counterclaims, one for damages suffered by the deceased's estate as a result of the collision, and the other for recovery of damages under the wrongful death statute.

The case was tried by the court and a jury, and a special verdict returned. The special verdict found the deceased negligent in failing to drive to his right of the center of the highway, and found this negligence a cause of the collision. The jury exonerated plaintiff from negligence of the same sort, assessed the plaintiff's damages at $600, found no damages to the automobile of the defendant, and no financial loss to the grandchildren of the deceased. From a judgment entered upon the verdict on October 31, 1931, in favor of the plaintiff, defendant appeals.Fred Arnold, of Eau Claire, and Fisher, Cashin & Reinholdt, of Stevens Point, for appellant.

Clarence E. Rinehard and Robert L. Wiley, both of Chippewa Falls (Henry Christoffersen, of Chippewa Falls, of counsel), for respondent.

WICKHEM, J.

Defendant's first contention is that the evidence does not sustain the finding of the jury that deceased was negligent. This requires an examination of the facts. The collision occurred about 6 o'clock in the evening of January 30, 1931. The plaintiff was driving his Chevrolet truck in a southerly direction on state trunk highway 29, a short distance south of Stanley. The deceased was driving his Oldsmobile coupé in a northerly direction on this highway. Plaintiff's truck was equipped with a platform eighty-two inches wide, which extended ten inches beyond the wheels and was not equipped with clearance lights. The headlights of both cars were lighted. The road was straight for a considerable distance on either side of the place of the collision. At the time plaintiff first observed the deceased's car, that car was traveling on its own proper side of the roadway, and plaintiff observed nothing irregular or careless about the deceased's manner of driving. Plaintiff testified that the deceased's car invaded his side of the road very suddenly. The left front tire of deceased's car was flat after the accident, and one witness stated that the tube was blown out. This is a sufficient outline of the facts to make understandable the character of defendant's attack upon the finding of negligence.

[1][2] Defendant's contention is that, at most, the evidence merely shows an unexplained invasion by deceased upon the plaintiff's side of the road; that there is evidence that the left front tire of deceased's car was blown out; that there is a strong presumption that the deceased used due care for his own safety, and that the jury was compelled either to accept the hypothesis of the blow-out as a cause of the accident, as in Seligman v. Hammond, 205 Wis. 199, 236 N. W. 115, or to conjecture or guess as to the explanation for deceased's presence on the wrong side of the road. It is further claimed that the Seligman Case is squarely in point and supports defendant's contention. In the Seligman Case the car of deceased swerved suddenly to the wrong side of the road, so sharply that the right side of deceased's car struck that of plaintiff's. There was a blow-out of the left front tire of deceased's car, although there was no physical impact to account for it. The jury found the deceased free from negligence, and this court held that there was enough evidence, in view of the law, to warrant the jury in coming to that conclusion.

This is quite a different case. Here the jury came to the opposite conclusion, and we think it was permissible for them to do so. It was recognized in the Seligman Case that the mere operation of a car upon the wrong side of the highway makes at least a prima facie case of negligence, and is enough, in the absence of an explanation which the jury is bound to accept, to warrant a conclusion of negligence on the part of its operator or driver. In view of the fact that the alleged blowout was of a tire that came into actual contact with the plaintiff's car, the jury was certainly not compelled to accept this as the explanation of the accident. Nor does the presumption that the deceased used due care for his safety destroy, as a matter of law, the inference arising from the presence of the deceased upon the wrong side of the highway. This inference is a genuine inference of fact, and is sufficient to rebut the presumption of due care on the part of the deceased. We have come to the conclusion that the jury was entitled to find that the presence of deceased's car on the left side of the highway constituted negligence on his part.

[3] The next contention of the defendant is that upon the evidence plaintiff was guilty of negligence as a matter of law. Defendant's first contention was based upon the concession, for purposes of argument, that the deceased did invade plaintiff's side of the road. This contention is based upon the claim that plaintiff in fact was driving to the left of the center of the road, and that the accident happened just as plaintiff was in the act of trying to swing back to the right side of the highway. Since plaintiff testified positively to the effect that he was driving on his own side of the highway, and that the deceased was not, there was clearly a jury question, unless plaintiff's testimony was so contrary to the physical facts as to fall within the doctrine of Stryk v. Sydarowich, 198 Wis. 542, 224 N. W. 479;Samulski v. Menasha P. Co., 147 Wis. 285, 133 N. W. 142. Defendant's argument that the physical facts are consistent only with the conclusion that plaintiff was on the wrong side of the highway at the time of the accident is based upon an elaborate analysis and interpretation of the various dents, scratches, and marks left upon the two cars by the impact of the collision. No useful service will be performed by a detailed discussion here of this contention. We conclude that, while inferences favorable to defendant may be drawn from an examination of this data, it is by no means conclusive as to the location of the cars at the time of the accident, and, if it is not, it was within the jury's province to accept plaintiff's testimony.

[4][5][6] The next contention of the appellant is that, since deceased was instantly killed in this collision, by the very act which is alleged to have created a cause of action in the plaintiff, no cause of action against the deceased ever existed in his lifetime, and that the survival statute does not apply. In order for a cause of action to arise, it is contended that there must exist at the same time a person to whom a duty is owed, a person owing the duty, and some act constituting a breach of that duty. It was the rule at common law that there could be no cause of action for death by wrongful act, because the event that would normally...