Flies v. Fox Bros. Buick Co.

• Decision Date: 03 April 1928
• Citation: 196 Wis. 196,218 N.W. 855
• Parties: FLIES v. FOX BROS. BUICK CO. ET AL.
• Court: Wisconsin Supreme Court

196 Wis. 196

218 N.W. 855

FLIES

v.FOX BROS. BUICK CO. ET AL.

Supreme Court of Wisconsin.

April 3, 1928.

Appeal from a judgment of the Circuit Court for La Crosse County; R. S. Cowie, Circuit Judge. Reversed.

This is an action by Margaret Flies against Fox Bros. Buick Company and Joseph H. Johnson to recover damages for personal injuries sustained by plaintiff in being run down and injured by an automobile operated by defendant Johnson and purchased by him from Fox Bros. Buick Company. From a judgment dismissing her complaint as to Fox Bros. Buick Company, the plaintiff brings this appeal.

The defendant Joseph H. Johnson purchased a secondhand automobile from the defendant Fox Bros. Buick Company and drove it away. Within two or three blocks from the garage, he approached a standing street car which was taking on and letting off passengers. He attempted to stop the automobile, when he discovered that the brakes were inefficient and would not stop the car, because of which he ran into plaintiff, causing her injuries. The jury returned the following special verdict:

“(1) Was the automobile driven by the defendant Joseph H. Johnson at the time of the collision in question equipped with efficient brakes? Answer: No.

(2) If you answer the question No. 1 ‘No,’ then answer this: Did the failure of the defendant Fox Bros. Buick Company to have said automobile equipped with efficient brakes render said automobile imminently dangerous to life and limb when used upon the streets of La Crosse? Answer: Yes.

(3) If you answer question No. 2 ‘Yes,’ then answer this: Did the defendant Fox Bros. Buick Company at the time of the delivery of said automobile to the defendant Johnson have knowledge that the lack of efficient brakes upon said automobile rendered the same imminently dangerous to life and limb when used upon the streets of La Crosse? Answer: No.

(4) If you answer question No. 2 ‘Yes,’ then answer this: Ought the defendant Fox Bros., in the exercise of ordinary care, to have known at the time of the delivery of said automobile to the defendant Johnson that the condition of the brakes upon said automobile rendered the same imminently dangerous to life and limb when used upon the streets of La Crosse? Answer: Yes.

(5) If you answer question No. 1 ‘No,’ then answer this: Was the failure to have said automobile equipped with efficient brakes a proximate cause of plaintiff's injury? Answer: Yes.

(6) If you answer question No. 1 ‘No,’ then answer this: Did the defendant Fox Bros. Buick Company at the time of the sale and delivery of the said automobile to the defendant Johnson represent to the said Johnson, in substance, that the same was equipped with all standard equipment and in proper operating condition for use upon the streets of La Crosse? Answer: Yes.

(7) Was the defendant Johnson, at or immediately prior to the collision with the plaintiff, wanting in the exercise of ordinary care in the manner in which he operated said automobile? Answer: No.

(8) If you answer question No. 7 ‘Yes,’ then answer this: Was the failure of the defendant Johnson to exercise ordinary care in the manner in which he operated said automobile a proximate cause of plaintiff's injury? Answer: No.

(9) Did any want of ordinary care on the part of the plaintiff proximately contribute to produce her injury? Answer: No.

(10) What sum of money will reasonably compensate the plaintiff for the injuries which she sustained on November 19, 1925? Answer: $3,000.”

Upon motion after verdict, the trial court changed the answer of the jury to the seventh question from no to yes, and that to the eighth question from no to yes, and ordered judgment dismissing the complaint as to the defendant Fox Bros. Buick Company. From that judgment the plaintiff brings this appeal.

Higbee & Higbee, of La Crosse, for appellant.

Richmond, Jackman, Wilkie & Toebaas, of Madison (Philip Snodgrass, of Monroe, of counsel), for respondents.

OWEN, J.

Liability of the Fox Bros. Buick Company is predicated upon the fact that after the car had been in a wreck and greatly damaged the Fox Bros. obtained title to it, took it into their garage, and repaired or rebuilt it so as to restore it to a usable condition, and that when they sold the car to Johnson the brakes were inefficient, in which condition the automobile constituted an instrumentality that was imminently dangerous to life and limb, because of which the Fox Bros. Buick Company became liable to persons sustaining injury by reason of the defective condition of the brakes. The liability of the Fox Bros. Buick Company to the plaintiff under these conditions constitutes the principal question to be considered, but before reaching that question it is necessary to dispose of certain minor questions raised upon the argument.

It is contended by the respondent that the negligence of Johnson, as found by the court, constitutes an intervening cause of the injury which, in any event, released the Fox Bros. Buick Company from any liability to the plaintiff. We shall make no inquiry as to whether the court was justified in changing the answers found by the jury to the questions relating to Johnson's negligence, because we are satisfied that it cannot constitute an intervening cause. The jury acquitted Johnson of any negligence. This finding is sustained by the evidence so far as the management of the car is concerned. It is said that because the statute requires every car to be equipped with efficient brakes, and subjects the owner of the car to a penalty for the absence of such equipment, that the law imposed upon Johnson the duty of having the car so equipped, and that his failure in such respect was negligence as a matter of law constituting an intervening cause relieving the Fox Bros. of any liability to which they might otherwise be subject.

Questions have arisen between connecting carriers as to whether the delivering carrier was liable for injuries sustained by employees of the receiving carrier because of the defective condition of the cars delivered. In Glynn v. Central R. Co., 175 Mass. 510, 56 N. E. 698, 78 Am. St. Rep. 507, and M. K. & T. R. Co. v. Merrill, 65 Kan. 436, 70 P. 358, 59 L. R. A. 711, 93 Am. St. Rep. 287, it was held that the failure of the receiving carrier to make such an inspection of the car as would reveal the defects causing the injury constituted an intervening cause and relieved the delivering carrier of its liability growing out of its failure to inspect. The contrary is held, however, in Pennsylvania Ry. Co. v. Snyder, 55 Ohio St. 342, 45 N. E. 559, 60 Am. St. Rep. 700, and Moon v. Northern Pacific R. Co., 46 Minn. 106, 48 N. W. 679, 24 Am. St. Rep. 194, where it was said, in effect, that the intervening event was one which might in the natural course of things be anticipated as not entirely improbable, and the failure of the delivering carrier to make the required inspection constituted a continuing unbroken causal connection in the events leading up to the injury.

[1] In this case the jury found that at the time of the sale Fox Bros. represented to Johnson that the car was equipped with all standard equipments and in proper operating condition for use upon the streets of La Crosse. This representation must have been made by Fox Bros. with the intention of having Johnson rely upon it, in which event they must have anticipated that he would make no inspection concerning the efficiency of the brakes. Their own representations having induced or contributed to Johnson's failure to make the inspection, they cannot claim immunity from the consequences of their own negligence because of Johnson's failure to make an inspection relying upon their representations. Even though Johnson's failure to inspect constituted negligence available to the plaintiff, it did not constitute an intervening cause as to Fox Bros. Olds Motor Works v. Lucy Shaffer, 145 Ky. 616, 140 S. W. 1047, 37 L. R. A. (N. S.) 560, Ann. Cas. 1913B, 689;Pastene v. Adams, 49 Cal. 90;Lewis v. Terry, 111 Cal. 39, 43 P. 398, 31 L. R. A. 220, 52 Am. St. Rep. 146;Rosenbrock v. Gen. Elec. Co., 236 N. Y. 227, 140 N. E. 571.

[2] It is further said that there is no finding that the brakes were inefficient at the time the car was delivered to Johnson. True, the first question inquires whether the car was equipped with efficient brakes at the time of the collision. The jury answered this question no. It is contended that this is not tantamount to a finding that the brakes were not efficient at the time Johnson took the car from the garage. However, by answer to the fourth question the jury finds that Fox Bros. in the exercise of ordinary care should have known at the time of the delivery of said automobile to the defendant Johnson that the condition of the brakes upon said automobile rendered the same dangerous to life and limb when used on the streets of La Crosse. The jury could not have answered this question as they did unless they were of the opinion that the brakes were inefficient when the car left the garage in charge of Johnson. A reasonable construction of the verdict taken as a whole is that the brakes were inefficient when the car was delivered to Johnson.

[3] It is further claimed that the verdict does not impute to Fox Bros. knowledge of the inefficient condition of the brakes at the time the car was delivered to Johnson. By the answer to question 3 the jury negatives absolute knowledge of such condition on the part of Fox Bros., but by the answer to question 4 the jury found that Fox Bros. ought in the exercise of ordinary care to have known at the time of the delivery of said automobile to the defendant Johnson that the condition of the brakes on said automobile rendered the same imminently dangerous to life and limb when used on the streets of La Crosse. The contention is, that the question made no inquiry concerning the condition of the brakes, but that the question merely meant, assuming that the brakes were in an...