Davis v. Skille

• Citation: 12 Wis.2d 482,107 N.W.2d 458
• Parties: Alden DAVIS, Appellant, v. John SKILLE et al., Respondents.
• Decision Date: 07 February 1961
• Court: United States State Supreme Court of Wisconsin

Page 458

107 N.W.2d 458

12 Wis.2d 482

Alden DAVIS, Appellant, v. John SKILLE et al., Respondents.

Supreme Court of Wisconsin.

Feb. 7, 1961.

Ted C. Boyle, Richard R. Rynders, Madison, for appellant.

Aberg, Bell, Blake & Metzner, Warren E. Kuehling, Madison, for respondents.

CURRIE, Justice.

While the brief of the plaintiff attempts to raise other issues, we consider that there is but one question which we need decide. Such question is whether the issue of comparative negligence was one which should have been passed on by the jury rather than by the trial court in directing a verdict.

A verdict should only be directed against a plaintiff where plaintiff's evidence, giving it the most favorable construction it will reasonably bear, is insufficient to sustain a verdict in plaintiff's favor. Western Cas. & Surety Co. v. Dairyland Mut. Ins. Co., 1956, 273 Wis. 349, 351, 77 N.W.2d 599; Pelitsie v. National Surety Corp., 1956, 272 Wis. 423, 427, 76 N.W.2d 327; and Radmann v. Chicago, M. & St. P. R. Co., 1890, 78 Wis. 22, 26, 47 N.W. 97.

The brief of the defendants sets forth a quotation from our opinion in Wear v Northern States Power Co., 1952, 262 Wis. 9, 13, 53 N.W.2d 777, 778, which in turn was copied from the opinion in Nitka v. Van Camp, 1949, 256 Wis. 119, 121, 40 N.W.2d 570. Such quoted extract is as follows:

"* * * when the trial judge rules, either on motion for nonsuit, motion for a directed verdict, or motion to set aside the verdict, that there is or is not sufficient evidence upon a given question to take the case to the jury, the trial court has such superior advantages for judging of the weight of the testimony and its relevancy and effect that this court should not disturb the decision merely because, on a doubtful balancing of probabilities, the mind inclines slightly against the decision, but only when the mind is clearly convinced that the conclusion of the trial judge is wrong." (Emphasis supplied.)

Counsel for the defendants seem to interpret the above quotation as holding that, when the trial court has weighed the evidence in passing on a motion for directed verdict, this court should not disturb the trial court's determination in a close case. However, it is hornbook law that the weight to be accorded competent and relevant evidence is for the jury and not the court. Kanzenbach v. S. C. Johnson & Son, Inc., 1956, 273 Wis. 621, 624, 79 N.W.2d 249. Possibly the reference to 'weight of the testimony,' which appears in the quoted extract, refers to the exceptional situation where a trial court, in passing on a motion for nonsuit or directed verdict, concludes that there is no credible evidence which would sustain a verdict for the plaintiff and in so doing evaluates and rejects the testimony of a witness on the basis of it being in direct conflict with conceded or physical facts. However, we deem that it is a misnomer to term such determination of incredibility as a weighing of evidence, and to continue to do so is likely to lead to confusion. Therefore, we qualify such quoted language from our opinions in Wear v. Northern States Power Co., supra, and Nitka v. Van Camp, supra, so as to eliminate therefrom the thought that it is ever the function of a trial court to weigh evidence when passing on a motion for nonsuit or directed verdict.

In the instant case there was no determination that any testimony presented in behalf of the plaintiff was incredible because it was in direct conflict with conceded or physical facts. Because this is so, we need set forth only the testimony and evidence favorable to the plaintiff in order to ascertain whether it would support a jury finding with respect to comparative negligence that would attribute more than 50 per cent of the total aggregate negligence to the defendants.

The accident occurred at about 5:00 p. m. on December 16, 1957, on a farm located in Dane county. The mechanical device which the plaintiff was operating at the time is referred to as a 'barn cleaner' and was manufactured by the Hedlund Manufacturing Company of Boyceville, Wisconsin.

A description of such barn cleaner is as follows: Two parallel chains are laid at the bottom of the barn gutter which extends through the barn at the rear of the cattle stanchions. Cross cleats, or paddles, are fastened to such chains at intervals of every 24 inches. This device consisting of the two chains and connecting cleats is called the 'apron.' The cattle are bedded with straw and, when the barn is cleaned, such straw and accumulated manure is pitched into the gutter on top of the apron. At one end of the gutter is a barn door leading to the barnyard. Another part of the barn cleaner consists of a wooden chute some 20 to 24 feet long with one end elevated to a height above the level of the top of a manure spreader. The low end of the chute extends to the barn door. At the upper end of the chute is a revolving roller or drum. After the straw and manure have been placed on the apron a cable is attached to the end of the apron nearest the chute which cable is also fastened to a power driven winch. When the power is turned on such cable pulls the apron with its load of debris up the chute and under and then over the revolving roller at the upper end of the chute. There is a sufficient opening between the floor of the chute and such roller to cause the debris to drop into a manure spreader which is parked under such opening. After the apron is pulled over such roller the cable causes it to be pulled back towards the barn until the apron finally again comes to rest in the barn gutter.

At one stage of the operation of the barn cleaner one portion of the apron with its load of debris is being drawn up the chute while directly above it another part of the apron is being drawn back towards the barn. When this occurs there is a distance of 18 inches between the top of the side pieces of the chute and the chains of the portion of the apron which has previously passed under and over the roller and is being drawn towards the barn. It was at this stage of the barn cleaning operation that the plaintiff was injured.

At the time of the accident the plaintiff was standing just outside the barn door opening at the foot of the chute. He noticed that at this point some of the debris to be carried up the chute was slipping back and beginning to pile up. He reached in between the near side of the chute and the upper returning apron chain with his gloved right hand and pressed down on such mound of debris. The moving cleats of the apron then caught hold and started to carry such mound of debris up the chute. However, it only proceeded about a foot and a half when it again started to slip back. A second time the plaintiff applied downward pressure to this debris with his right hand. In doing so his weight was shifted to his left foot. This foot slipped and plaintiff involuntarily reached out with his left hand in an effort to grab something that...