Bros v. Berg

• Decision Date: 03 April 1934
• Citation: Bros v. Berg, 214 Wis. 661, 254 N.W. 384 (Wis. 1934)
• Parties: BROTHERS v. BERG ET AL.
• Court: Wisconsin Supreme Court

214 Wis. 661

254 N.W. 384

BROTHERS

v.BERG ET AL.

Supreme Court of Wisconsin.

April 3, 1934.

Appeal from a judgment of the Circuit Court for Washburn County; W. R. Foley, Circuit Judge. Affirmed in part and reversed in part.

This action was begun on February 3, 1933, by the plaintiff, Agnes Brothers, against Ed. Berg and his insurance carrier, Milwaukee Automobile Insurance Company, and Albert Baer, to recover damages for injuries sustained in an automobile accident on the 15th day of September, 1932. The deceased husband of the plaintiff was a guest of the defendant Baer. The jury found Berg negligent and acquitted both Brothers and Baer of any negligence. The court held that Baer was guilty of negligence as a matter of law and judgment was entered accordingly on May 29, 1933, from which all defendants appeal. Damages were found at $7,500.

On September 15, 1932, George Brothers, husband of the plaintiff, drove his automobile to Trego and left it at the garage operated by Albert Baer to be repaired. Baer in his own car then drove Brothers back to Spooner. As they were driving south on State Trunk Highway 53, a 30-foot wide, graveled and oiled road, at about 8 o'clock in the evening, they collided with a truck owned by Berg, driven by one George Nichols, assisted by one Noel Smithbeck. The truck had come from Ironwood, Mich., and left Poplar, Wis., about 4 o'clock in the afternoon to drive to Bloomer. While proceeding south on highway 53 and at a point 2 or 3 miles north of Spooner the rear right double tire went flat. The driver pulled over to the right side of the road and stopped the truck so as to leave a clear traveled road space to the left of the width of 19 feet or more, left the helper in charge of the truck, and started to walk to Spooner to procure assistance. The headlights were burning on the truck but the electric tail-light was out of commission. Smithbeck had a flash-light which he used apparently in an attempt to warn travelers. There is some dispute as to where Smithbeck stood just prior to the time of the crash. He was either on the left running board of the truck or some few feet to the left or east of the truck on the highway waving his flash-light. There was a gradual curve to the north of the point where the truck was parked but to the south the road was straight and practically level. It is undisputed that there was attached to the rear of the truck near the outer or left corner a 5-inch King Bee red reflector which was approved by order of the Industrial Commission for use in lieu of a tail-light. The condition of the reflector is in dispute. Baer attempted to swing his car to the left to avoid the truck which he did not see until he was within a few feet and collided with the left rear corner of the truck, Brothers being instantly killed.

The jury found that the defendant Berg was negligent because of failure to provide and maintain a sufficient tail-light or warning signal; that the collision was the natural and probable result of such failure and that Berg, as a person of ordinary intelligence and prudence, reasonably ought to have foreseen such result from such failure; that Smithbeck failed to exercise ordinary care to warn automobiles coming from the north and that the collision was the natural and probable result of such failure; that Smithbeck should have foreseen the injury. The jury found that Baer did not fail to exercise ordinary care with respect to lookout nor with respect to speed; that Baer had not failed to exercise ordinary care by increasing the danger or adding to the risk which Brothers assumed; and that George Brothers was not guilty of any want of ordinary care with respect to his own safety. The jury apportioned the negligence, 85 per cent. due to the failure to have the truck properly equipped with a tail-light and to properly maintain the same, and 15 per cent. to Smithbeck's negligence with respect to warning. The trial court being of the view that Baer was guilty of negligence as a matter of law, set aside the finding of the jury with reference to Baer's negligence, and judgment was rendered jointly against Baer and Berg.

Other facts will be stated in the opinion.

Bender, Trump, McIntyre & Freeman, of Milwaukee (Eugene L. McIntyre, of Milwaukee, of counsel), for other appellants.

W. T. Doar, of New Richmond, for appellant Albert Baer.

Wilcox, Wilcox & Sullivan, of Eau Claire, and R. V. Gleason, of Minneapolis, Minn., for respondent.

ROSENBERRY, Chief Justice.

On behalf of the defendant Berg it is contended that where a safety rule or a safety statute is complied with, there is no room for a finding that the person complying therewith has been guilty of a want of ordinary care, citing Bent v. Jonet (Wis.) 252 N. W. 290;Bentley Bros. v. Industrial Comm., 194 Wis. 610, 217 N. W. 316. We are cited to sections 85.06 (1-4, 6, 7) and Orders Nos. 2161 and 2162 of the Industrial Commission made pursuant thereto, from which it appears that a King Bee 5? red reflector is an approved type.

[1] Assuming that the evidence establishes the fact that the truck of the defendant Berg was so equipped, it does not establish the fact that it was so “adjusted and operated as to render the use of the highway by such vehicles reasonably safe for all the public” as required in section 85.06 (1).

The jury was apparently of the view that for some reason the reflector device failed to operate, it being undisputed that there was no electric light. The finding of the jury upon that question is supported by credible evidence and cannot be disturbed. Having reached this conclusion, we do not need to consider whether Berg's employee Smithbeck was or was not negligent.

[2] It is further contended that Baer was the agent of the deceased and that Baer was negligent as a matter of law. There is no direct evidence bearing upon this question. Brothers lived at Spooner. Pursuant to a telephone conversation had with Baer, Brothers drove his automobile to Trego, a point 6 miles north of Spooner, to have Baer repair it. Baer owned a Chevrolet Cabriolet which he himself drove from Trego south to take Brothers home. It was on this trip that the accident occurred. It is quite clear that the relation between Brothers and Baer was at least that of host and guest. It does not appear that it was any part of the bargain between Brothers and Baer that Baer should take Brothers to Spooner, nor does it appear that Brothers requested Baer to do so. It appears from the evidence that Brothers drove his car to the Baer garage to have it repaired. There it was found it could not be repaired that night, whereupon Baer of his own motion took his car to drive Brothers back home. Brothers accepted the transportation. The Restatement of the Law of Agency, § 1(1) is as follows:

“Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.”

Nothing appears in the record to indicate that Baer was doing anything more than an act of courtesy for one of his customers. Certain it is there is no evidence that Brothers had any control over Baer in any respect whatever. While it may be said that Baer was acting on behalf of Brothers in the sense that the act which he performed was for the benefit of Brothers in that he was returned to his home instead of being compelled to walk or procure other transportation, this does not create the relation of principal and agent but that of host and guest.

[3][4] It is also contended that Brothers was guilty of negligence which...