Thedorf v. Lipsey

• Decision Date: 12 October 1956
• Docket Number: No. 11700.,11700.
• Parties: William THEDORF, Plaintiff-Appellant, v. Sam LIPSEY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

237 F.2d 190 (1956)

William THEDORF, Plaintiff-Appellant, v. Sam LIPSEY, Defendant-Appellee.

No. 11700.

United States Court of Appeals Seventh Circuit.

October 12, 1956.

James T. Murray, Dougherty, Arnold & Philipp, Suel O. Arnold, Milwaukee, Wis., for appellant.

Van B. Wake, Milwaukee, Wis., Shaw, Muskat & Paulsen, Milwaukee, Wis., of counsel, for appellee.

Before LINDLEY and SWAIM, Circuit Judges, and WHAM, District Judge.

LINDLEY, Circuit Judge.

In the district court plaintiff sought to recover damages for personal injuries sustained by him, occasioned, as he claimed, by the negligence of defendant in so operating the latter's automobile on a public highway in Wisconsin, in the night-time, as to cause it to collide with a disabled motorcycle being pushed on the highway by plaintiff and two associates. In answering special interrogatories submitted by the court, the jury found plaintiff and defendant each guilty of 50% of the negligence causing the accident. In such instances, the Wisconsin statute requires a dismissal of the suit. From the judgment entered in accord with this procedure, plaintiff appeals, contending (1) that the trial court should have admitted in evidence a Manual of the Motor Vehicle Department of Wisconsin pertaining to stopping distances of motor vehicles; (2) that the negligence of plaintiff with regard to tail-lights on the motorcycle, which the jury found to exist, "could not constitute" proximate cause of the accident, and (3) that the trial court should have instructed the jury of the legal result of their findings of equal comparative negligence. Thus our review does not involve any inquiry as to the credence of witnesses, for the evidence submitted to the jury was conflicting, and, considered in the light most favorable to defendant, as we must view it, affords no justification for weighing it on our part. Our only function is to determine whether the trial court erred in any respect urged.

The manual which plaintiff sought to introduce purported to have been issued by the State and contained certain statistics bearing upon stopping distances under various circumstances. It sought to inform motorists of normal expectations in traffic under normal conditions. It was not endowed with the characteristics of a statute; it was not legislative action, but had been issued, apparently, by the Department to supply information and suggestions to the travelling public. It could have had no probative effect upon the question of negligence on the part of defendant. If it was intended by plaintiff's offer to supply the jury with evidence as to what was a safe stopping distance for defendant after he discovered plaintiff and the motorcycle at the time of the accident, it was incompetent for the reason that the opinions, conclusions and statistics included in it were unsworn statements made by parties outside the presence of the court, who were not submitted as witnesses and who could not be cross-examined. It comprised merely ex parte statements of third persons, incompetent for any purpose in the trial of the cause.

Plaintiff's argument that his negligence, found by the special verdict to have existed with regard to the tail-lights on the motorcycle which was struck by defendant, "could not" constitute proximate cause of the action, raises a question of fact which was for decision by the jury. Whether the plaintiff was negligent, whether defendant was negligent, and whether the negligence of either or both was the proximate cause of the resulting injury, were purely jury questions. In order to say as a matter of law that plaintiff's negligence in failing to have lights upon the motorcycle which could be seen could not have caused the accident we would have to say that this was the only possible, the only inevitable conclusion. Otherwise, we would invade the jury's province, for, in order to prevent plaintiff's negligent conduct from being the causal factor, it must have been clear beyond peradventure that the omission to have adequate light on the motorcycle could not have caused the accident, or that the injury would have occurred just the same, had the plaintiff's negligent act not been committed. Roeske v. Schmitt, 266 Wis. 557, 64 N.W. 2d 394. The law of Wisconsin as defined in the cited case is in accord with general jurisprudence to the effect that what is proximate cause is ordinarily a question for the jury, if the evidence is conflicting or if different inferences can be drawn from it. Schultz v. Brogan, 251 Wis. 390, 29 N.W.2d 719. If the evidence is conflicting or, although not contradictory, is open to two or more reasonable inferences as to what actually took place, the case must be left to the jury.

There remains the contention that the court should have instructed the jury as to the effect of its finding of comparative negligence upon the part of both plaintiff and defendant....