Turk v. H. C. Prange Co.

• Decision Date: 05 February 1963
• Citation: 119 N.W.2d 365,18 Wis.2d 547
• Parties: Wilma TURK et al., Appellants, v. H. C. PRANGE CO., Defendant-Respondent, Otis Elevator Co., Interpleaded Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 365

119 N.W.2d 365

18 Wis.2d 547

Wilma TURK et al., Appellants, v. H. C. PRANGE CO., Defendant-Respondent Otis Elevator Co., Interpleaded Defendant-Respondent.

Supreme Court of Wisconsin.

Feb. 5, 1963.

Rehearing Denied April 2, 1963.

Dudley O. Emmert, Manitowoc, for appellants.

Gruhle, Fessler, Wissbroecker & Van De Water, Sheboygan, for defendant-respondent.

Wickham, Borgelt, Skogstad & Powell, Donald R. Peterson and Donald L. Johnson, Milwaukee, of counsel for interpleaded defendant-respondent.

WILKIE, Justice.

1. Plaintiffs' counsel's opening statement. The first issue raised on this appeal is whether the trial court committed prejudicial error against the plaintiffs in ruling counsel's opening statement, that this was a res ipsa loquitur case, improper, and in denying plaintiffs' motion for a mistrial based on said ruling.

During his opening statement to the jury the plaintiffs' attorney attempted to enlighten the jury on the effect of the res ipsa loquitur doctrine. He made it clear that he was going to rely heavily on the doctrine in presenting his case. The trial judge stopped him and told him not to proceed on that doctrine until the court ruled that the doctrine applied. The plaintiffs contend that this was prejudicial error. At the time, counsel made a motion for a mistrial on the grounds of prejudice since the jury heard the court's reprimand of the plaintiffs' theory of law. This motion was denied by the trial court. There is no doubt that a trial judge can stop an attorney from proceeding during his opening statement on a theory of law until such time as the judge determines that the theory is applicable to the case being tried. Sec. 274.37, Stats.; Grace v. Dempsey and others, (1889), 75 Wis. 313, 43 N.W. 1127; 4 Callaghan's Bryant, Wisconsin Pleading and Practice (3d ed.), pp. 411-414, secs. 33.35, 33.36; 3 Am.Jur., Appeal and Error, p. 534, sec. 973.

'An appellate court will not disturb the exercise by the trial court of its discretion as to the arguments and conduct of counsel unless there has been an abuse of discretion.' 5A C.J.S. Appeal & Error § 1611, p. 113.

Clearly there was no abuse of discretion when the trial judge could not tell before the proof was presented whether or not the doctrine of res ipsa loquitur was applicable.

2. The applicability of the doctrine of res ipsa loquitur. The second and most important issue raised on this appeal is whether the trial court committed prejudicial error against the plaintiffs in failing to instruct the jury that this was a res ipsa loquitur case and the effects thereof.

There is no doubt but what the trial court decided this was not a res ipsa loquitur case. Instructions on the doctrine as requested by the plaintiffs were denied. Although the trial court submitted the case to the jury on a possible safe-place violation and on common-law negligence, he did not give to the plaintiffs the benefit of the doctrine of res ipsa loquitur.

As to the escalator, plaintiffs' evidence was, in substance, that John's galosh was caught in the center of the escalator and it could not have been caught there, where the last tread of the escalator met the comb at the base, unless the tread and comb were negligently out of adjustment so that there would be a gap which would cause the galosh to be caught. Defendant's evidence was to the effect that the tread and comb were in proper adjustment at the time of the accident, and that the boy's galosh was actually caught in the curtain on the extreme right-hand side of the escalator, where the galosh could become caught even though the escalator was in perfect adjustment.

Although in discussing proposed instructions and the Otis motion for a nonsuit of Prange's cross-complaint against Otis the trial court expressed an opinion that the plaintiffs' evidence raised an inference of negligence on the part of Prange, and that the effect of the doctrine of res ipsa loquitur in this state is that of a permissible inference, no instruction to that effect was given to the jury.

This was prejudicial to the plaintiffs. With the benefit of a proper instruction the jury could well have answered differently and found Prange negligent either under common law or in violating the safe place statute. Because of the prejudicial error, plaintiffs should receive a new trial. This was a proper case for the doctrine of res ipsa loquitur to apply and for the plaintiffs to receive the benefits of that doctrine.

The three elements of res ipsa loquitur as defined in Ryan v. Zweck-Wollenberg Co. (1954), 266 Wis. 630, 64 N.W.2d 226, that must be present before the application of the doctrine, are: (1) The accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff. Colla v. Mandella (1955), 271 Wis. 145, 72 N.W.2d 755; Arledge v. Scherer Freight Lines Inc. (1955), 269 Wis. 142, 68 N.W.2d 821; Prosser, Law of Torts, ch. 7, p. 201, sec. 42; 39 Marquette Law Review (1955-56), 361; Anno. 66 A.L.R. (2d) 507.

First Element: Accident does not occur in absence of negligence. The respondent claims that since all the facts and circumstances in the case are known and presented, the appellants cannot proceed under res ipsa loquitur, i. e., where the appellants claim or present proof of specific elements of negligence, res ipsa loquitur fails. However, in Wisconsin, specific elements of negligence can be alleged or supported in evidence without destroying the doctrine. In Brunner v. Van Hoof (1958), 4 Wis.2d 459 at page 464, 90 N.W.2d 551, the court said at page 554:

'When specific acts of negligence are shown making a prima facie case by the plaintiff and the inference of negligence is met and overcome by the evidence on the part of the defendant the doctrine of res ipsa loquitur is not applicable. Gay v. Milwaukee Electric Ry. & Light Co., 1909, 138 Wis. 348, 120 N.W. 283.'

Respondent claims:

'It [the doctrine] does not apply where an unexplained accident may be attributable to one of several causes, for some of which the defendant is not responsible. It should not be allowed to apply where, on proof of the occurrence, without more, the matter still rests on conjecture alone or the accident is just as reasonably attributable to other causes as to negligence.'

This is a correct statement of the law, but it does not govern the instant case.

Respondent cites Klein v. Beeten (1919), 169 Wis. 385, 172 N.W. 736, 5 A.L.R. 1237, as authority for its contention. However, in that case the court did not allow the plaintiff to proceed under res ipsa loquitur because if it had, the verdict of the jury might be a result of conjecture and guesswork. In that case the plaintiff's son was killed as a result of riding in defendant's truck. The truck left the highway, turned over and pinned the son against the ground. Testimony showed that the left front tire was deflated. Therefore the cause of the accident could have been the defendant's negligence in the operation of his vehicle (an actionable cause), or the result of an unforeseen blowout (a non-actionable cause). A jury verdict cannot stand upon conjecture and therefore res ipsa loquitur was correctly ruled not to have applied in that case. As stated in the case of Hyer v. City of Janesville (1898), 101 Wis. 371, 77 N.W. 729:

'[W]here there is no direct evidence of how an accident occurred, and the circumstances are clearly as consistent with the theory that it may be ascribed to a cause not actionable as to a cause that is actionable, it is not within the proper province of a jury to guess where the truth lies and make that the foundation for a verdict.'

In the instant case the respondent contends that one can get his galosh caught without negligence on the part of the defendant, such as John did, by riding in the wrong position on the escalator and therefore this would create two possible causes, one actionable and one non-actionable.

The plaintiffs' proof gave rise to an inference of negligence on the part of Prange; the defendant's proof was only in explanation of the accident and not such as to remove every inference of possible negligence. In such a situation the doctrine of res ipsa loquitur applies and plaintiffs are entitled to an instruction on it. In Koehler v. Thiensville State Bank (1944), 245 Wis. 281, at page 288, 14 N.W.2d 15, at page 18:

'Of necessity, the inferences of negligence arising in cases of res ipsa loquitur are of varying strengths and so are the proofs adduced to meet these inferences. In a great many cases involving the existence of defective construction or maintenance in machines, for example, it is possible to meet the inference of negligence with refutation so conclusive as to leave not a scintilla of the inference, and in such a case there is no issue for the jury. On the other hand, if the counterproof is of a character that need not be treated as a verity, the inference persists and a jury, as in the Lipsky Case, supra [Lipsky v. C. Reiss Coal Co. (1908), 136 Wis. 307, 117 N.W. 803], may still be permitted to weigh the inference against the so-called rebutting testimony. That this is the scope of the rule is indicated by the following statement in the Lipsky Case [136 Wis. 307, (p. 312) 117 N.W. 805]:

"The inference of negligence which in a proper case may be drawn from the accident itself is one of fact, and the authority of the jury to decide whether it should be drawn can be excluded only in presence of undisputed proof, not merely testimony, that such negligence did not occur."

In Wood v. Indemnity Ins. Co. (1956), 273 Wis. 93, at page 102, 76 N.W.2d 610, 614, it was held at page 614:

'We are constrained to hold that in a situation where it ordinarily would be permissible to invoke the rule of res ipsa...