Klein v. Beeten

• Decision Date: 27 May 1919
• Citation: 169 Wis. 385,172 N.W. 736
• Parties: KLEIN v. BEETEN ET AL.
• Court: Wisconsin Supreme Court

169 Wis. 385

172 N.W. 736

KLEIN

v.BEETEN ET AL.

Supreme Court of Wisconsin.

May 27, 1919.

Appeal from Circuit Court, Walworth County; George Thompson, Judge.

Action by George Klein against Iddo Beeten and others. Judgment for defendants, and plaintiff appeals. Affirmed.

This is an action brought to recover damages for the death of plaintiff's son, alleged to have been caused by the negligence of the defendants. At the close of the testimony the court directed a verdict in favor of the defendants, and from the judgment entered thereon plaintiff appealed.Michael Levin and Joseph G. Konop, both of Milwaukee (Glicksman, Gold & Corrigan, of Milwaukee, of counsel), for appellant.

E. L. Von Suessmilch, of Delavan, Jeffris, Mouat, Oestreich, Avery & Wood, of Janesville, for respondents.

OWEN, J.

The defendants are copartners operating a meat market in the city of Sharon. On the morning of August 10, 1916, the defendant Iddo Beeten delivered some meat at a farmhouse some distance from Sharon with a Ford automobile. Plaintiff's son, Edward Klein, about 15 years of age, asked, and was permitted, to ride with him on the trip. While returning, and while on a perfectly smooth turnpike road, the width of the roadway being close to 30 feet, the automobile suddenly turned to the left, ran into the gutter, striking with the front wheels against the outside banks thereof, and causing the overturning of the automobile. The boy was caught under the car and killed. The complaint alleges that--

“Said defendant so carelessly and negligently managed and operated said automobile, without maintaining the proper outlook and at an excessive rate of speed, and so carelessly and negligently managed same as to lose control thereof and run into a ditch on the roadway where the said defendant was driving said automobile, causing said automobile to turn over, thereby throwing the said plaintiff's son in such a manner that the running board of said automobile fell on said plaintiff's son's neck, which caused the said plaintiff's son's death instantly.”

There is no direct evidence in the case showing that the defendant Iddo Beeten was driving at a high or unlawful rate of speed, or that he was guilty of other negligence. The defendant Beeten was unable to give any explanation of the cause of the accident, other than that the automobile suddenly sheered to the left and went into the gutter. He could assign no reason for its so doing. Something happened so suddenly that he did not know what it was. The car was righted and run to town on its own power. The fenders were bent, and the wind shield was broken. The left-hand front tire was deflated. Otherwise the car was in good condition.

[1][2] The foregoing are about all the tangible facts disclosed by the evidence. Plaintiff claims that the doctrine of res ipsa loquitur is applicable to the situation, and that the case should have been submitted to the jury. This doctrine may be stated to be that, when both the apparatus and the operation of it are within the control of the defendant, and the accident is one which ordinarily could not happen except by reason either of defect in the apparatus or negligence in the operation, a presumption of one or the other arises sufficient, from the happening of the accident, to justify a verdict against the defendant. Liability in this case is not predicated upon any defect of the automobile. Liability is predicated solely upon the negligent operation of the car. The facts proved are that an accident happened at a place where the road was smooth and in good order. Plaintiff contends that proof of this fact raises an inference of negligence in the operation of the car. When the car was righted, after the accident, the left-hand front tire was found to be deflated by reason of a blow-out of...