Thomas v. Steppert

• Decision Date: 07 January 1930
• Citation: 228 N.W. 513,200 Wis. 388
• Parties: THOMAS v. STEPPERT.
• Court: Wisconsin Supreme Court

200 Wis. 388

228 N.W. 513

THOMAS

v.STEPPERT.

Supreme Court of Wisconsin.

Jan. 7, 1930.

Appeal from a judgment of the Circuit Court for Marathon County; A. H. Reid, Circuit Judge. Reversed.

Action by Verna Thomas, plaintiff, against Carl Steppert, defendant, commenced on the 4th day of August, 1928, to recover damages for personal injuries resulting from an automobile accident. From a judgment in favor of the plaintiff rendered on the 25th day of June, 1929, the defendant appeals.

Some time during the month of May, 1928, the defendant purchased a Studebaker automobile. While he had had some experience in driving a Ford car a number of years prior thereto, he had no experience in driving a Studebaker car. While he was learning to drive the car, he called up the plaintiff and told her about the purchase of the car, and said: “I am learning to drive and I have got it pretty well under my control. I will call you sometime next week when I am handling it a little better.” About a week later he called her up and invited her to take a ride with him, to which she consented, the result being that plaintiff and defendant, together with Ben Knipple and Gertrude Egner, drove from Wausau out to and beyond the village of Hatley. Plaintiff and defendant were sitting on the front seat. Knipple and Gertrude Egner were sitting on the back seat. Knipple had taught the defendant to drive the Studebaker car. They drove at about 30 or 35 miles an hour. The roads were good, and no difficulty in the management of the car was experienced until they struck a curve a short distance beyond Hatley. It was a gentle curve, neither sharp nor abrupt. The plaintiff saw a sign indicating a curve, reminded the defendant that they were approaching a curve, and he slowed down the car. He testified that he removed the pressure from the accelerator and let the car coast on its own momentum. After rounding the extreme bulge of the curve, the rear of the car began to sway or slue, and, before the defendant could bring it under control, it tipped over, resulting in personal injuries to plaintiff. She brought this action to recover damages because of such injuries. From a judgment in favor of plaintiff, defendant brings this appeal.

Bird, Smith, Okoneski & Puchner, of Wausau, for appellant.

F. P. Regner, of Wausau, for respondent.

OWEN, J.

[1] The jury found that the accident was due to inadvertence and lack of attention on the part of the defendant in the operation of the car, and not to his lack of skill. The main contention of the appellant is that there is no evidence to sustain such finding.

It must be conceded that the evidence leaves much uncertainty as to the cause for the unusual performance of the car upon the occasion in question. The plaintiff testified that “when he got just around the curve, the car just jumped as if he had stepped on the gas quick and the car started to sway, first to the right side of the road and then to the left side, jumped a ditch and went through a fence into a farmer's field. The car jumped as if it went faster. I did not see Carl step onto anything, but he was moving his feet and his hands as if he got excited after the car started to go faster.” She further testified that “up to the point of the accident, we went around a few curves and he made them without difficulty. He was driving carefully. I was satisfied with his method of driving at all times. After the car started to speed up, I think he got nervous and lost control of the car.”

Gertrude Egner testified that “the speed of the car was about the same until we got just about around the curve and then the car gave a jump or jerk and then we began to sway. It seems as if we went faster after we got around the curve.”

The defendant testified that when “we came up to the curve, I should judge I was going around 25 to 30 miles an hour. I saw the curve sign just as Verna Thomas mentioned it. I got just a side glance at it. I then immediately took my foot off the accelerator, that is, the gas pedal. I didn't put my foot on the brake. The car gave a jerk and slowed up some. I didn't put my foot on the gas accelerator any time after that up to the accident. I had my foot entirely off, right on the floor. We had just got around the curve when we tipped over. The car swayed on me and I tried to steer it in. I knew I didn't dare to give it a quick turn because I knew it would jerk us over on the side, so I gradually came to the side that way, but the car swayed so I couldn't control it, and it tipped over on its left side off the road through the fence about six feet from the road.”

Ben Knipple, who was an experienced car driver, testified that “this curve where the accident happened was a long rounding curve. It didn't require slowing up. I have made it a number of times going 40 to 45 miles an hour. It isn't difficult to make it at that speed. Carl was driving between 30 and 35 miles an hour when he came up to this curve. I didn't see the curve sign. I heard Verna say, ‘Curve.’ I didn't feel any...