Steffen v. McNaughton

• Decision Date: 22 February 1910
• Citation: 124 N.W. 1016,142 Wis. 49
• Parties: STEFFEN v. MCNAUGHTON.
• Court: Wisconsin Supreme Court

142 Wis. 49

124 N.W. 1016

STEFFEN

v.MCNAUGHTON.

Supreme Court of Wisconsin.

Feb. 22, 1910.

Appeal from Circuit Court, Outagamie County; John Goodland, Judge.

Action by Anton Steffen, administrator of Anna Steffen, against John McNaughton. There was a directed verdict for defendant, and from the order directing the verdict and from the judgment, plaintiff appeals. Affirmed.

On July 3, 1907, Anna Steffen was struck and killed in the city of Appleton by an automobile which was operated by the chauffeur of the defendant. The deceased came from Lawrence street, running east and west, and was crossing a part of State street, running north and south. As she approached State street from the west on Lawrence street, she signaled a street car coming from the south on State street to stop. The car waited for her, and when she was about midway between the curb and the street car, she turned her head, and saw the automobile approaching from the north. She stopped, hesitated, and probably turned, and had taken a step backward when she was struck. She died shortly after. The chauffeur had had about five months' experience in the handling of automobiles, and had been in the employ of the defendant a little less than two months. At the time of the accident the chauffeur was alone in the automobile, and was going to his home for dinner. There is evidence that he saw the deceased step from the curb when he was about 150 feet from her; that he continued on his course without slacking the speed of the car, and that he attempted to pass between her and the curb. He claims that the deceased caused the collision by negligently stepping back toward the curb and in front of the automobile, that he had turned toward the curb to pass her, and that it was impossible for him to avoid the collision because the space between her and the curb was insufficient for him to pass. The evidence varies much as to the rate of speed at which the car was traveling. The distance between the curb and the street car was about 20 feet, and the deceased was struck when 9 or 10 feet from the curb. The automobile was a five passenger, thirty horse–power machine. It was 112 inches long, and 67 inches wide. It weighed between 3,000 and 3,500 pounds. The chauffeur had full charge of the automobile under the direction of the defendant and his family and under his contract of employment. Under the contract of employment the defendant did not furnish the chauffeur with his meals, and the chauffeur went to his home for them. During the chauffeur's employment by the defendant he had taken the machine to a shop for repairs, and had taken and used it to go to his dinners, perhaps 10 times. He had not been directed by his employer to use the machine for this purpose, and he had never obtained permission so to use it. The defendant testified that he did not see the chauffeur so use the machine, and that he did not know that he so used it. This is an appeal from the order of the court directing a verdict for the defendant, and from the judgment on the verdict.J. Elmer Lehr (H. C. Sloan and A. M. Spencer, of counsel), for appellant.

Doe & Ballhorn, for respondent.

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

The questions as to the defendant's liability which arise if it be assumed that the evidence permitted the inferences that the chauffeur's negligence was the proximate cause of decedent's injuries, and that she was free from contributory negligence, are these: First, Is an automobile per se a dangerous machine? And, secondly, Was the chauffeur acting within the scope of his employment while driving the car at the time of the accident?

Upon the first inquiry we discover nothing in the construction, operation, and use of the automobile requiring that it be placed in the category with the locomotive, ferocious animals, dynamite, and other dangerous contrivances and agencies. When properly handled and used, automobiles are as readily and effectually regulated and controlled as other vehicles in common use, and, when so used, they are reasonably free from dangers. The dangers incident to their use as motor vehicles are commonly the result of the negligent and reckless conduct of those in charge of and operating them, and do not inhere in the construction and use of the vehicles. It is well known that they are being devoted to and used for the purposes of traffic and as conveyances for the pleasure and convenience of all classes of persons and without menace to the safety of those using them or to others upon the same highway when they are operated with reasonable care. The defendant cannot therefore be held liable upon the ground that the automobile is a dangerous contrivance. This view has been adopted by the courts in the following cases. Slater v. Advance Thresher Co., 97 Minn. 305, 107 N. W. 133;McIntyre v. Orner, 166 Ind. 57, 76 N. E. 750, 4 L. R. A. (N. S.) 1130, 117 Am. St. Rep. 359;Lewis v. Amorous, 3 Ga. App. 50, 59 S. E. 338;Jones v. Hoge, 47 Wash. 663, 92 Pac. 433, 14 L. R. A. (N. S.) 216, 125 Am. St. Rep. 915;Cunningham...