Hasselman v. Zimmerman

• Decision Date: 03 December 1957
• Citation: 86 N.W.2d 418,2 Wis.2d 345
• Parties: Laurence P. HASSELMAN et al., Appellants, v. Richard ZIMMERMAN et al., Respondents.
• Court: Wisconsin Supreme Court

Page 418

86 N.W.2d 418

2 Wis.2d 345

Laurence P. HASSELMAN et al., Appellants, v. Richard ZIMMERMAN et al., Respondents.

Supreme Court of Wisconsin.

Dec. 3, 1957.

George J. Laird, Fond du Lac, for respondents.

BROADFOOT, Justice.

The first contention made by the plaintiffs is that Mrs. Zimmerman was negligent in the manner in which she parked the automobile as a matter of law. Plaintiffs rely upon two cases, Hughes v. Rentschler Floral Co., 193 Wis. 49, 213 N.W. 625 and Biller v. Meyer, 7 Cir., 33 F.2d 440, 66 A.L.R. 436. In the Hughes case the defendant's delivery truck was parked at the curb on an incline to enable the driver to deliver a package at the house of a customer. During the absence of the driver the truck started coasting down the hill where it struck a young woman, inflicting injuries resulting in her death. In that case the driver testified that he set his hand brake tightly and cramped the right front wheel against the curb. After both parties rested the trial court granted defendant's motion for a directed verdict and dismissed the complaint. This court reversed and held that upon the record a jury question was presented. Plaintiffs quote one sentence from the decision as follows:

'* * * Unquestionably, if the testimony of the driver is to be taken as absolutely true, to the effect that he put his brake on tightly and cramped the wheel in against the curb, such action on his part would be ordinary care.' [193 Wis. 49, 213 N.W. 626.]

Although this court did not use the words 'res ipsa loquitur' it did hold that the record in that case warranted inferences by the jury and that the jury was not bound to believe the testimony of the driver. The plaintiffs argue that the sentence quoted established the standard of ordinary care to be exercised by a driver in parking a motor vehicle on a steep grade. We cannot agree with that interpretation.

Mrs. Zimmerman testified that she did not put her hand brake on, and she was not certain whether she turned the right front wheel against the curb. The Zimmerman automobile was equipped with some type of automatic transmission. She shifted this transmission into parking position, and relied upon that to hold the car. She testified that she had parked on that same street several times and on other declines and that when the automatic transmission was set in parking position nothing had ever happened. An automobile mechanic testified that when the automatic transmission was set in parking position there are three teeth that lock into the gear in the transmission and a car then cannot move more than a quarter to half an inch. He further testified that this resulted in a locking of the wheels and that it operates better than setting the emergency brake.

The Hughes case was decided in 1927 before cars were equipped with automatic transmission devices. The court did not say that some other equally effective means would not be a compliance with the standard of ordinary care. Certainly if a driver blocked his wheels with wooden or cement blocks or chained the car to some immovable object the car would be unable to move unless tampered with by some other person, and the standard of ordinary care would be complied with.

In the Biller case, supra, the driver testified that he set his brake and put his car in reverse gear. The court stated that if the driver had taken the precautions to which he testified he would have been absolved from all negligence. However, the court said the case is one for the application of the doctrine of res ipsa loquitur, cited the Hughes case, and affirmed a judgment for the plaintiff.

Had the jury found that Mrs. Zimmerman was negligent in the manner in which she parked her car that verdict, upon the record here, would have to be sustained upon the doctrine of res ipsa loquitur. That doctrine, however, does not require, but merely affords a basis for, a finding of negligence.

Witnesses testified that shortly after the Zimmerman car struck the second automobile at the foot of the hill a man was seated behind the steering wheel. When he entered the car does not...