Van Matre v. Milwaukee Elec. Ry. & Transport Co.

• Decision Date: 11 January 1955
• Citation: 67 N.W.2d 831,268 Wis. 399
• Parties: Marilyn VAN MATRE, formerly Marilyn Javore, an infant, by her gdn. ad litem, et al., Respondent, v. The MILWAUKEE ELECTRIC RAILWAY & TRANSPORT CO., a corporation, Appellant.
• Court: Wisconsin Supreme Court

Page 831

67 N.W.2d 831

268 Wis. 399

Marilyn VAN MATRE, formerly Marilyn Javore, an infant, by her gdn. ad litem, et al., Respondent, v. The MILWAUKEE ELECTRIC RAILWAY & TRANSPORT CO., a corporation, Appellant.

Supreme Court of Wisconsin.

Jan. 11, 1955.

Shaw, Muskat & Paulsen, Milwaukee, John F. Zimmermann, Milwaukee, of Counsel, for appellant.

Kleczka & Steinhilber, Milwaukee, for respondent.

GEHL, Justice.

Question 1 of the special verdict inquired whether the injuries resulted from an unavoidable accident. The jury answered in the negative. The court instructed the jury that the burden of proof to establish an affirmative answer to the question was upon the defendant. Defendant contends that the burden was erroneously placed. We have found but one Wisconsin case which may be considered as dealing with the question as to who has the burden to prove unavoidable accident when it is in issue. In Murray v. Yellow Cab Co., 180 Wis. 314, 192 N.W. 1021, a negligence case, the court refused to submit to the jury a question inquiring whether plaintiff was injured as the result of a mere accident. In its instructions dealing with the question of defendant's negligence the court did, however, charge that to answer those questions against defendant the jury must be satisfied that the collision was not the result of an unavoidable accident and that the burden of proof to establish that it was not was upon the plaintiff. The instruction was not attacked and the court, without any discussion and apparently without considering that it had been called upon to decide the precise question, found no fault with it. If the decision may be considered as authority for the proposition that the burden of proof to establish the negative is upon the plaintiff it accords with the view of a number of decisions of other jurisdictions. Hardman v. Younkers, 15 Wash.2d 483, 131 P.2d 177, 151 A.L.R. 868; El Paso Electric Co. v. Hedrick, Tex.Civ.App.1931, 39 S.W.2d 128; Jolley v. Clemens, 1938, 28 Cal.App.2d 55, 82 P.2d 51; Polk v. City of Los Angeles, Cal.App.1944, 150 P.2d 520. In some of these cases it has been held that the burden is not shifted even when unavoidable accident is pleaded as a defense.

To entitle a plaintiff to recover in a negligence case he is required to show that defendant was negligent and that the negligence was the proximate cause of the injury complained of. If the injury resulted from and unavoidable accident that is the same thing as to say that neither party was negligent. We conclude that the court erred in its charge.

We are of the opinion, however, that defendant was not prejudiced by the court's error. By its answers to questions (2) and (3) of the verdict the jury found defendant guilty of causal negligence. The court had rightly charged that the burden of proof as to these questions was upon the plaintiff. The answers to the questions were not inconsistent with the jury's finding that the injuries did not result from an unavoidable accident. The answer to question (1) is not needed to support the judgment and is superfluous. Krantz v. Krantz, 211 Wis. 249, 248 N.W. 155.

We consider it advisable to call attention to the fact that when questions inquiring as to the negligence of the parties involved in an automobile collision case are put to the jury it is not ordinarily necessary to add a question inquiring as to whether the injuries resulted from an unavoidable accident. We believe that the foregoing demonstrates that such question is under the circumstances unnecessary and that it may result in confusion and inconsistency which of course could be of no help to either of the parties. There may be negligence cases when the inclusion of such a question would be advisable but we are of the opinion that such cases would be rare.

It is contended that there is no credible evidence in the record to support the jury's finding that defendant's operator was negligent with respect to speed and the control of the bus.

Defendant urges that the sole cause of the collision was the slippery condition of the roadway and the resultant skid of the bus. It is true as defendant contends that skidding on a slippery pavement is not necessarily due to negligence but the inquiry goes further than to determine whether skidding occurred. The speed of the vehicle prior to or at the time of the skidding or the manner in which the car is controlled even after the skidding has commenced are factors to be considered in determining whether there has been negligence.

'* * * the fact that the skidding of an automobile, considered by itself as an isolated factor unrelated to surrounding circumstances, is not evidence of negligence, does not mean that skidding always constitutes a defense to other proven acts of negligence.' 5 Am.Jur. (Supp.) 118, p. 654, sec. 273.

From a point at least 500 feet south there was a slight downgrade toward the intersection of the two streets. The entire road surface was slippery with ice. There was testimony that as the bus approached the intersection it was traveling 'rather rapidly', twenty-five miles per hour, and that such speed had continued during at least the last 250 feet of its travel to the point of impact; that its speed was not reduced in that distance. The bus operator testified that he was twenty-one minutes behind schedule. Probably the most significant testimony supporting the finding that he was negligent with respect to speed was his reply to a question why he did not shift gears earlier than he did as he approached the intersection. His answer was: 'For the simple reason that I realized that my bus was traveling a little faster than I should on that slippery road'. It does not appear that the bus was being operated in excess of the speed fixed by statute or ordinance as the legal limit. That does not mean, however, that one who drives at less than the permitted speed is exonerated from negligence as a matter of law. Reynolds v. Madison Bus Co., 250 Wis. 294, 26 N.W.2d 653. The jury had the right to infer that the bus operator was negligent in approaching a place at which he was required to stop his bus on an icy street at the rate of twenty-five miles per hour. Lang v. Baumann, 213 Wis. 258, 251 N.W. 461.

We are of the opinion also that there is support for the jury's finding that the operator was negligent with respect to management and control. He saw the people waiting to board the bus when he was at least 500 feet from the intersection; he did not blow his horn at any time; he did not shift gears so as to be better able to control the bus until he was twenty feet from the people at the curb; he lost control of the bus when he applied his brakes and shifted into low gear. He testified that he double-clutched; and that that is the general procedure that you take to slow down your motor on slippery roads; he found out that that was an erroneous procedure in this case 'through the inexperience of not going on them kind of roads * * * I wouldn't say insufficient experience.' He testified also that if he had followed the course of another bus which arrived at the scene after the accident and had travelled 'more toward the center' he would not have had the accident. It is clear that these circumstances admit of an inference for the contention of plaintiff that the operator was negligent with respect to the manner in which he controlled the bus.

Defendant contends that plaintiff should have been found guilty of contributory negligence as a matter of law, particularly that she was...