Crossett v. Goelzer

• Decision Date: 06 June 1922
• Parties: CROSSETT v. GOELZER ET AL.
• Court: Wisconsin Supreme Court

177 Wis. 455

188 N.W. 627

CROSSETT

v.GOELZER ET AL.

Supreme Court of Wisconsin.

June 6, 1922.

Appeal from Circuit Court; Milwaukee County; Wm. B. Quinlan, Judge.

Action by Hazel Crossett against Henry Goelzer and another. Judgment for plaintiff, and defendants appeal. Remanded for trial upon a single issue.

Personal injury. Shortly after 7:30 o'clock in the evening of January 7, 1920, the plaintiff, accompanied by her father, mother, and several of her friends, was on the way to a toboggan slide. They were being taken to the park where the toboggan was located in the tow of the Dallman automobile. The toboggan, which was quite a large one, 14 feet 6 inches long and 22 inches wide, with runners or iron cleats along the bottom, was hitched to the rear axle of the Dallman automobile near the left spring. When the Dallman automobile with the toboggan attached had reached a point in the park north of Washington Boulevard entrance and distant 4 or 5 feet north of a certain street lamp post, the towline broke, another towline was procured, and the toboggan again attached. After the toboggan was so attached, there was a space of about 7 1/2 or 8 feet from the rear axle of the automobile to the front of the toboggan and of about 5 or 6 feet between the left rear wheel of the automobile and the front end of the toboggan. The toboggan was so attached that the left side of the toboggan, as the automobile and toboggan moved forward, extended a few inches beyond the track of the left wheel of the automobile. The toboggan slide was located in a northeasterly direction from the place where the rope was changed, and the road in the park leading from the latter point to the toboggan slide was a curved driveway running generally north and turning toward the east, the easterly side of the driveway being convex and the westerly side concave. The driveway was 30 feet wide, but snow had been plowed off the road to either side, leaving 25 feet in the clear for a driveway and a snowbank on either side about 2 1/2 feet at and along the curb.

After the rope was changed, the Dallman automobile, with the toboggan attached, proceeded northeasterly on the right side of the driveway and parallel with the curb, hugging the easterly curb, and the toboggan followed in the position heretofore indicated. The plaintiff's father was on the front of the toboggan, with his feet on the cushion and his knees against the hood or circle of the toboggan in a half-standing, half-kneeling position ready to prevent, if necessary, the toboggan sliding underneath or too near the automobile. A Mr. Hinkel was located at the rear of the toboggan, swinging a lighted red lantern.

When the Dallman automobile had proceeded northerly, and reached a point about 100 feet north of the place where the rope was changed, and while it, with the toboggan in tow, on the east side of the driveway and parallel with and close up to the easterly curb, was traveling at the rate of 2 or 3 miles an hour, the defendant Elton P. Goelzer, coming from the opposite direction in a Hudson seven-passenger automobile owned by his father, the defendant Henry Goelzer, and traveling from 12 to 15 miles an hour, suddenly turned his automobile to the left as it met the Dallman automobile, cut in across the driveway immediately in the rear of the Dallman automobile and ran into and across the toboggan in a diagonal line, tearing the toboggan from the Dallman automobile, breaking the rope and carrying the toboggan back in a southeasterly direction, passed over the toboggan and several of its occupants, including the plaintiff, and ran into the snowbank at the east curb, so that the left front wheel of the Goelzer automobile was imbedded in the snow up to the hub and the right front wheel was at the snow bank along the easterly curb. When the Goelzer automobile stopped, it stood diagonally across the driveway, facing in a southeasterly direction, at an angle of about 45 degrees to the easterly curb.

The jury found the defendant Elton P. Goelzer guilty of negligence in the operation and management of his automobile, that such negligence was the proximate cause of plaintiff's injuries, and that neither the plaintiff nor any one on the toboggan nor in the Dallman automobile were guilty of contributory negligence, and assessed the plaintiff's damages at $2,500. There were the usual motions, and judgment was rendered for the plaintiff upon the verdict, from which the defendant appeals.

Eschweiler, J., dissenting.

J. Elmer Lehr, of Milwaukee, for appellants.

A. H. Riemer and Churchill, Bennett & Churchill, all of Milwaukee, for respondent.

ROSENBERRY, J. (after stating the facts as above).

The motions made by the defendant raise two principal questions: First was the defendant Henry Goelzer liable by reason of his ownership of the automobile driven by his son; and second, does the evidence support the verdict? It is the claim of the defendants that, as the Dallman automobile moved northerly, the toboggan was thrown out of its regular line of travel by reason of the curve in the road around which it was traveling and that, just immediately preceding the accident, the rope which attached the toboggan to the automobile broke, thus permitting the toboggan to be thrown across the pathway of the automobile of the defendant; and further claim is made that it was negligence, as a matter of law, to attach a toboggan to the rear of an automobile so that it might become loose and run into the highway in front of approaching automobiles without warning.

[1] From a careful examination of the evidence, we are satisfied that the proof is abundant to sustain the findings of the jury in respect to the facts. The claim of the defendants that the toboggan was thrown into the pathway of the oncoming automobile, that is, to the center of the traveled portion of the highway, has but slight support in the evidence, and is directly contradicted by those upon the toboggan and in position to observe the facts as they were. There was thus presented a clear jury issue, which was found against the contention of the defendants.

The question of whether or not Henry Goelzer, the father, is liable under the facts and circumstances of this case is presented by the brief of the defendant Henry Goelzer, but not argued. On behalf of the plaintiff, it is argued that the so-called family purpose doctrine should control and that, if such doctrine be applied to the facts in this case, the defendant Henry Goelzer was clearly liable. The facts are these: Elton, the son, at the time of the accident was nearly 17 years of age and a competent driver. He had driven the automobile, which was owned by his father, a seven-passenger Hudson, 29 horse power, very frequently, using it to go to school, to take his sisters to and from school, to take his mother out driving for pleasure and shopping. The family consisted of the father, mother, Elton, two younger brothers, one older sister, and one younger sister. The father drove the car at times, usually on Sundays, and the car was used generally for the pleasure, comfort, and convenience of the family. The car was not taken out without the father's permission except as directed by the mother, and the father at all times knew where the car was. On the evening in question, Elton proposed to take his sisters and some friends of his and theirs skating. The proposed trip was submitted to the father for his approval, and Elton had the father's permission to take the car for the purpose of taking his sisters and his and their friends to the skating park. He procured the car from the garage, returned to his home for his sisters, then called for their friends, and then for his cousin. He left these at the skating rink, and then went to call for a Miss Giese, who was an employé in his father's office, and, accompanied by Miss Giese and Clarence Schumann, he went some blocks to the home of a cousin to procure from him the skates which his cousin had borrowed the day before but had not returned. The father was not advised of the fact that Elton was to go to the home of his cousin for the purpose of procuring his skates, and it was while Elton was driving the car on his way to get the skates that the accident happened. The father testified that the car was a family car; that Elton drove it with his permission so that the family might have the use of the car and receive entertainment and pleasure thereby. It also appeared that Elton used the car to some extent for household errands and shopping; that he at times used it for his own purpose when none of the family were with him.

This particular question, not having been before presented to this court, will be treated more fully and more in detail than is our customary practice, and, as a preliminary to that, we desire to call attention to some fundamental principles as exemplified in the decisions of this and other states.

[2] An automobile is not an inherently dangerous instrumentality, so that its mere use will render the owner liable for accidents caused by one handling it, although at the time he need not be acting for the owner. Danforth v. Fisher, 75 N. H. 111, 71 Atl. 535, 21 L. R. A. (N. S.) 93, 139 Am. St. Rep. 670;King v. Smythe, 140 Tenn. 217, 204 S. W. 296, L. R. A. 1918F, 293.

A minor son living with his father was directed by the father to take the father's gun to the cornfield and there to shoot crows, for which the son was to receive ten cents apiece. Instead of remaining in the cornfield, the son went away from the father's premises hunting other game, and, while several miles away, by his carelessness in handling the gun, another person was injured. The father was held not liable therefor, because the son was not, at the time of the accident, in his father's employ or in any sense the servant of the father for such a purpose. Winkler v. Fisher, 95 Wis. 355, 70 N. W. 477. The matter of whether or not the gun was a dangerous...