Hatch v. Smail

• Decision Date: 22 June 1946
• Parties: HATCH et al. v. SMAIL et al.
• Court: Wisconsin Supreme Court

249 Wis. 183

23 N.W.2d 460

HATCH et al.

v.SMAIL et al.

Supreme Court of Wisconsin.

June 22, 1946.

Appeal from a judgment of the Circuit Court for Eau Claire County; Clarence E. Rinehard, Judge.

Affirmed.

This action was commenced on February 2, 1940, by Leonard Hatch and Employers Mutual Liability Insurance Company, plaintiffs, against George Smail and Northern States Power Company, a Wisconsin corporation, defendants, to recover damages claimed to have been sustained by the plaintiff Hatch in an automobile accident which occurred on February 22, 1938. The case was tried to a jury. The jury found in favor of the plaintiffs. Judgment was entered accordingly on October 22, 1945, from which the defendants appeal.

The facts will be stated in the opinion.

WICKEM, J., dissenting. Ramsdell, King & Linderman, of Eau Claire, for appellants.

Wilcox, Wilcox & Sullivan, of Eau Claire, for respondents.

ROSENBERRY, Chief Justice.

On February 22, 1938, the plaintiff was riding in a car driven by the defendant, George Smail. Mr. Phillips, who died before the trial, was riding on the right-hand side of the driver. The plaintiff Hatch was riding at the left in the rear seat and on his right was his employer, C. R. Stocks. In attempting to make a curve to the left, of less than forty-five degrees, at a speed of approximately forty miles an hour, the driver lost control of the car which turned around completely once, headed back off the shoulder and tipped over. The plaintiff does not recall exactly how he got out of the car and claims to have been dazed by a blow of some kind. The accident occurred about 3:30 or 3:45 in the afternoon. As soon as the occupants of the car were out, they proceeded to set the car up on its wheels. One of the witnesses, in describing the event, said: ‘We went to right this car almost immediately. Water was coming out of the battery. We were afraid of fire, that was one thought. Nothing was said about it. We rushed around immediately. I think we all had the same thought in mind. We looked each other over for a second or two, there didn't seem to be any serious damage, so lifted the car up. I believe that it is right to say that we moved around by common impulse. My main thought was getting a way to get home. I was afraid if we did not do that I might not have a way to get home. * * * I would agree with Mr. Smail that between the time of clambering out and the time of going around to right the car it might have taken a half a minute or less. Probably a minute at the outside.’

The great preponderance of the evidence tends to show that plaintiff sustained an injury by having his wrist come in contact with broken glass while the car was being righted. By its special verdict the jury found that the defendant Smail, the driver of the car, was negligent in failing to keep proper control, failing to maintain a proper lookout for the condition of the highway and in driving his car at an excessive speed in view of the condition of the highway; that these acts of negligence were a cause of the accident and of the damages sustained thereby. The jury found that the plaintiff was free from negligence; that the plaintiff did not acquiesce in the manner in which Smail was operating the automobile with respect to management and control and speed.

With respect to causation, the court instructed the jury as follows:

‘Negligence is the cause of a collision or injury when it alone produces the same or cooperates with some other cause in producing it jointly as a natural result. An intervening act of a human being which is a normal response to the stimulus of a situation created by the negligence of another does not prevent an injury received during such act from being the natural result of the original negligence.

‘The question is if you feel from the evidence that the injuries of the plaintiff, Leonard Hatch, were received while doing something after the accident itself, then you must decide whether the action in which the injury was received was a normal response to the stimulus of the situation and emergency created by the accident. It is for you to determine from all the evidence in the case whether the accident and injury were the natural result of the negligence and, if so, then of what and whose negligence?

Upon this appeal the defendants first contend that the evidence does not sustain the finding of the jury as to the negligence of the defendant Smail. We have carefully examined the evidence and it is considered that the evidence if believed by the jury is ample to sustain the verdict.

The defendants next contend that no one having received compensable injuries because of the tipping over of the car, but that the injuries sustained by the plaintiff were the result of the efforts of the four occupants of the car to tip it back on its wheels during which operation the plaintiff's wrist was cut on the edge of a broken window glass; therefore the negligence of the defendant Smail was not the cause of the plaintiff's injury.

This contention requires us to deal with one of the most difficult problems in the law of causation. It is not enough that the defendant Smail's conduct was as the jury found negligent as to the plaintiff but it must also appear that such negligence was a legal cause of the plaintiff's harm. Legal cause is defined in the Restatement of Torts, sec. 431, as follows:

‘The actor's negligent conduct is a legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm, and (b) (Not material.)

In the Comment on this section, it is said:

‘a. * * * The word ‘substantial’ is used to denote the fact that the defendant's conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense in which there always lurks the idea of responsibility, rather than in...