Mayr v. Milwaukee & Suburban Transport Corp.

• Decision Date: 05 February 1957
• Citation: 80 N.W.2d 761,274 Wis. 616
• Parties: Otto MAYR, Respondent, v. MILWAUKEE & SUBURBAN TRANSPORT CORP., Appellant, Mutual Auto Ins. Co. et al., Defendants.
• Court: Wisconsin Supreme Court

Page 761

80 N.W.2d 761

274 Wis. 616

Otto MAYR, Respondent, v. MILWAUKEE & SUBURBAN TRANSPORT CORP., Appellant Mutual Auto Ins. Co. et al., Defendants.

Supreme Court of Wisconsin.

Feb. 5, 1957.

Paul Pike Pullen, Milwaukee, for plaintiff-respondent.

Quarles, Spence & Quarles, Milwaukee, Walter P. Rynkiewicz, Milwaukee, of counsel, for defendant-respondent, Eternick.

Holden & Schlosser, Sheboygan, for Mutual Auto Ins. Co.

FAIRCHILD, Justice.

The appellant asserts that the jury must believe the testimony of its motorman that he saw the step in its proper position at the opposite end of the run. Appellant argues that there being no evidence of any intervening occurrence sufficient to put the motorman on notice of damage to the step the jury's finding that the motorman ought to have known of the defective step before the collision was unsupported by evidence. The appellant also challenges the finding that the partially open position of the step was a cause of the collision and asserts that the jury's findings of negligence on the part of the motorman as to lookout and management and control were unsupported. Mutual Auto asserts that there is no credible evidence that Eternick's negligence in failing to operate his automobile on the right half of the street was causal.

The jury could properly draw the inference that the motorman ought to have known of the condition of the step. It had not been used since the motorman had last been stationed at the number two end of the car. The step and the door were controlled by a set of rods and levers which were described and exhibited to the jury. When working properly, the door and the step must work together, and the step does not go partially down unless the door is open to the same degree. The step was at about a 45 degree angle and extending about 6 or 7 inches out from the car. It was seen in that position by Eternick just before the collision and by Link two blocks east of the point of impact. There was no testimony that the door was open until after the collision. The motorman had removed the handle which controls the door when leaving the number two end. There was no testimony that the door was or could have been opened by one of the passengers and the jury might infer that if the door had been open for two blocks or more, the motorman should have noticed it. The only way in which the step could have been part way down without the door being open, as far as the evidence shows, was for a particular nut to become loose, and appellant offered no testimony whether or not this nut was inspected after the accident. The rods and levers controlling the door and step had not been in use since the motorman had been operating from the number two end.

This is a proper situation in which to apply the doctrine of res ipsa loquitur, and the findings of negligence with reference to the step are supported in the light of that doctrine. The devices for controlling the door and step were in the exclusive control of the motorman. In the ordinary course of things, and assuming due care on his part, the step is turned up close to the streetcar at all times while in motion. Appellant's shop employees gave the jury a detailed description of the devices controlling the door and step but failed to explain how the step could be down if the motorman was free from negligence. Their testimony tended mainly to show that if the step was part way down, the door must not have been properly closed. These employees are thoroughly familiar with the controls and also had a full opportunity to inspect the streetcar immediately after the collision.

The decision in Dunham v. Wisconsin Gas & Electric Co., 228 Wis. 250, 256, 280 N.W. 291, 283, is in point. There the plaintiff pedestrian was struck and tripped by a wire which trailed from the back of defendant's truck. Defendant's driver did not know the wire was trailing. The jury found negligence. This court applied the rule that "when the thing is shown to be under the management of the defendant or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care."

The jury heard the motorman's testimony that the step was in its closed position at the opposite end of the previous run. His experience could be deemed somewhat limited and he was an 'extra' rather than a 'regular' operator. He had an obvious interest in demonstrating that he had not been careless. It would have been difficult for him to observe the position of the step from the inside of the streetcar by looking through the closed door. These factors evidently caused the jury to disbelieve his testimony that the step was in its...