Linden v. Miller

• Citation: 177 N.W. 909,172 Wis. 20
• Parties: LINDEN v. MILLER.
• Decision Date: 01 June 1920
• Court: United States State Supreme Court of Wisconsin

172 Wis. 20

177 N.W. 909

LINDEN

v.MILLER.

Supreme Court of Wisconsin.

June 1, 1920.

Appeal from Circuit Court, Milwaukee County; E. T. Fairchild, Judge.

Action by Ivy Linden against Bertram A. Miller. Judgment for defendant, and plaintiff appeals. Affirmed.

Action to recover damages for personal injuries sustained in an auto collision. January 1, 1917, at about 6 o'clock in the evening, plaintiff was riding in an automobile in a northwesterly direction on Prospect avenue and on the right-hand side thereof. The automobile was driven by her husband and was within a few feet of the east curb of the street when defendant's automobile, which was going in a southeasterly direction, skidded into plaintiff's and caused the injuries complained of. The alleged negligence of the defendant consisted in: (1) Driving at a rate of speed in excess of that permitted by law; (2) reckless operation of his car in view of the icy condition of the street; (3) driving to the left of the center of the street; (4) failing to have control of his machine; (5) incompetency of the driver, and (6) failure to have the machine equipped with chains or other devices for controlling the same. The jury found: (1) The defendant did not fail to exercise ordinary care in operating his automobile at or immediately prior to the happening of the collision; (3) the collision was due to an unavoidable accident; and (4) damages in the sum of $600. From a judgment in favor of defendant upon the special verdict, the plaintiff appealed.Roethke & Affeldt, of Milwaukee (Christian Doerfler, of Milwaukee, of counsel), for appellant.

Glicksman, Gold & Corrigan, of Milwaukee, for respondent.

VINJE, J. (after stating the facts as above).

It appears from the evidence that defendant's car, a Super-Six Hudson weighing about 3,500 pounds, was driven at a rate of from 10 to 15 miles an hour at the time it began to skid. Defendant's wife occupied the front seat with him. The rear seat was empty. When an icy spot was reached, the rear end of the car began to slue to the west, and defendant in vain tried to turn the front end to the west. The result was that almost immediately his car skidded diagonally across the street, and, though he finally applied the brakes hard, he struck plaintiff's car with quite a crash, inflicting the injuries complained of.

[1] Plaintiff argues that it was error to submit the third question as to whether the collision was due to an unavoidable accident because there is absolutely no evidence in the case upon which a finding of unavoidable accident could be based. If it be true, as the defendant claims it was, that he was driving along near the center of the street at a moderate rate of speed when his car began to skid, and that by the exercise of ordinary care he was unable to control it until it struck plaintiff's car, then the jury might well find that it was an unavoidable accident. 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...