Liebenstein v. Eisele

• Decision Date: 07 March 1939
• Citation: 230 Wis. 521,284 N.W. 525
• Parties: LIEBENSTEIN v. EISELE et al.
• Court: Wisconsin Supreme Court

230 Wis. 521

284 N.W. 525

LIEBENSTEIN

v.EISELE et al.

Supreme Court of Wisconsin.

March 7, 1939.

Appeal from a judgment of the Circuit Court for Wood County; Byron B. Park, Judge.

Action by Josephine Liebenstein, administratrix of the estate of A. D. Liebenstein, deceased, against Paul Eisele and others for death of plaintiff's intestate resulting from a collision between truck of the deceased and an automobile of the named defendant. From a judgment for the plaintiff, defendants appeal.-[By Editorial Staff.]

Reversed and remanded.

This appeal is from a judgment of the circuit court for Wood County, entered January 29, 1938, in favor of the plaintiff-respondent, against the defendants-appellants, in the sum of $7500 damages and costs. The collision between the plaintiff's decedent's truck and the automobile of the appellant, Eisele, out of which the action arises, occurred on January 8, 1937, on State Trunk Highway 13, about one mile east of Pittsville, in Wood County. The plaintiff's decedent died on January 10, 1938, as a result of injuries sustained in said collision. Case was tried to the court and jury. By its special verdict, the jury found the defendant, Eisele, negligent as to speed, lookout, and not having his car under proper control, and that in each respect such negligence was a cause of the collision. The jury found no negligence on the part of the deceased, Liebenstein. The usual motions were made after verdict. The court sustained the verdict, whereupon judgment was entered. Defendants appeal. Further material facts are stated in the opinion.

J. L. Schlatterer, of Milwaukee, and Brazeau & Graves, of Wisconsin Rapids, for appellants.

Hugh W. Goggins, of Wisconsin Rapids, and Herman C. Runge, of Sheboygan, for respondent.

MARTIN, Justice.

State Trunk Highway 13 runs in an easterly and westerly direction. Said highway has a concrete surface sixteen feet wide with a six foot shoulder on each side. On the day in question, the shoulders were plowed out so there was an actual width, including the shoulders, of twenty-eight feet. It appears that this entire surface was covered by ice, rendering the highway very slippery. There was nothing to obstruct a person's view in either direction from the point where the collision occurred. At the time in question, Mr. Liebenstein was operating and driving a 1935 Dodge one and one-half ton platform truck, equipped with dual wheels, with dual chain equipment for the wheels, in an easterly direction, going toward his home. Official sunset on January 8, 1937, was 4:50 P. M. The jury found that the accident occurred at 4:55 P. M. It appears that at about 4:00 P. M., Mr. Liebenstein stopped at a garage at Pittsville where he equipped and reinstalled the chains on the dual wheels of the truck. He was accompanied by his daughter, Jean. When he got out on the highway, about one mile east of Pittsville, the daughter heard a banging on the truck as of chains hitting, whereupon Mr. Liebenstein stopped his truck on the right hand side of the highway, standing partly on the shoulder and the concrete surface. Mr. Liebenstein got out of the cab from the left side, walked around in front of the truck and to the rear on the south side of the truck. There is testimony that the deceased was standing immediately to the rear of his truck shortly before the impact in which he was injured. The defendant, Eisele, was driving his car in an easterly direction following the truck. He was accompanied by one Carl Holt. When Eisele first observed the truck ahead, he thought it was moving slowly. He testified that he observed the truck when about a block or a little more away; that he immediately released his gas feed to slow down. As he proceeded on and had reached the point where he would ordinarily turn out to pass the truck, he observed a car approaching from the opposite direction. He testified that he applied his brakes gently for the purpose of slowing his car down to permit the oncoming car to pass; that when he applied his brakes, his car skidded, making a turn to the left, sort of half circle. The rear end of Eisele's automobile came in collision with the left rear end of the truck. Approximately at the time of the collision, the automobile approaching from the east passed in safety. Immediately after the collision, Eisele's car came to a stop immediately back of the truck, facing in the opposite direction (west). There is some testimony that the impact drove the truck a distance of fifty-six feet from the point of impact. Eisele testified that the truck was parked on the roadway in his travel lane without lights. The truck was equipped with head lights and also rear reflectors. There is testimony on the part of the plaintiff to the effect that the defendant, Eisele, approached the truck at a speed estimated at between thirty and forty miles per hour. Eisele testified that when he was about two hundred feet away from the truck, he observed it was stopped; that he was then traveling at a speed of thirty miles per hour; that he had reduced his speed to twenty miles per hour before his car went into a skid. The width of the platform on the truck was seven feet six inches. The truck was not disabled. The stop was made apparently for the purpose of repairing a rear tire chain. About fifty feet from the place where the truck stood, there was a driveway on the south side of the concrete leading into a farm yard. This driveway was of a width to permit the parking of the truck entirely off the traveled portion of the highway.

The appellants make the following assignment of errors:

(1) The verdict as to appellant Eisele's negligence in respect to speed, lookout and control was not supported by the evidence.

(2) The verdict as to the non-negligence of respondent's decedent in parking his truck is contrary to the law and evidence.

(3) The court erred in instructing the jury that Liebenstein had no right to park his truck in the roadway to the Miller farm.

Appellants contend that there was no evidence that justified the submission of any question as to the negligence of the defendant, Eisele, and in this connection argue that the accident occurred because the Eisele car got out of control due to a slight application of the brakes while being driven on a slippery road; that the skidding was not due to speed; that there is no showing that the skidding would not have occurred had Eisele been driving at the rate of fifteen miles per hour or less, and in this connection, appellants contend that lack of control is not actionable unless it results from some negligent act or omission. In support of their contention, appellants cite Sullivan v. Lutz, 181 Wis. 61, 194 N.W. 25,Linden v. Miller, 172 Wis. 20, 177 N.W. 909, 12 A.L.R. 665.

In Linden v. Miller, supra, the court said: “Skidding may occur without fault, and when it does occur it may likewise continue without fault for a considerable space and time. It means partial or complete loss of control of the car under circumstances not necessarily implying negligence.Hence plaintiff's claim that the doctrine of res ipsa loquitur applies to the present situation is not well founded. In order to make the doctrine of res ipsa loquitur apply, it must be held that skidding itself implies negligence. This it does not do. It is a well-known physical fact that cars may skid on greasy or slippery roads without fault either on account of the manner of handling the car or on account of its being there. No negligence as a matter of law can be charged to the fact that defendant ran his car on Prospect avenue that day on a snowy and slippery roadway.”

However, it appears that in the above case, defendant's car was being driven at a rate of from ten to fifteen miles an hour at the time it began to skid; that when it came upon an icy spot in the highway, the rear end of the car began to skid to the west; that defendant tried in vain to turn the front end to the west and almost immediately his car skidded diagonally across the street striking plaintiff's car, thus inflicting the injuries complained of. The special verdict was in favor of the defendant, and from a judgment in defendant's favor, plaintiff appealed. In Sullivan v....