Welch v. Neisius

• Decision Date: 30 June 1967
• Citation: 151 N.W.2d 735,35 Wis.2d 682
• Court: Wisconsin Supreme Court
• Parties: Ernest WELCH, Respondent, v. Edward J. NEISIUS, d/b/a C & H Transfer Co., Appellant, Wis. Farmco Service Co-op., a Wis. corp., Defendant.

Page 735

151 N.W.2d 735

35 Wis.2d 682

Ernest WELCH, Respondent, v. Edward J. NEISIUS, d/b/a C & H Transfer Co., Appellant Wis. Farmco Service Co-op., a Wis. corp., Defendant.

Supreme Court of Wisconsin.

June 30, 1967.

Cameron, Shervey & Weisel, Rice Lake, for appellant.

Hughes, Anderson, Davis & Witkin, Superior, B. R. Fredrickson, Superior, of counsel, for respondent.

BEILFUSS, Justice.

The two principal issues are:

1. Did the court err in instructing the jury as to the doctrine of res ipsa loquitur?

2. Was the plaintiff negligent as a matter of law in the manner in which he attempted to enter the trailer?

In our earlier cases this court consistently held that three elements must be established to invoke the doctrine of res ipsa loquitur: (1) The accident must be the kind which ordinarily does not occur in the absence of someone's negligence; (2) it must have been caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff. ¹

In 1963, in Turk v. H. C. Prange (1963), 18 Wis.2d 547, 558--559, 119 N.W.2d 365, this court held, that because of our comparative negligence statute, sec. 331.045, Stats. (renumbered 895.045), failure to prove the third element, freedom from contributory negligence, is not an absolute bar to the application of the res ipsa loquitur doctrine. Therefore, if the first two elements appear, the plaintiff was entitled to an instruction on res ipsa loquitur.

In light of common experience, the court can fairly say that fertilizer bags such as those described in the evidence do not ordinarily fall from the stationary trailers in the absence of negligence on the part of someone. We conclude the first element of the doctrine of res ipsa loquitur appears satisfactorily from the evidence.

The second element, exclusive control in the defendant, was also found present by the trial court:

'This leaves us only element number two, exclusive control. Defendant delivered the load of fertilizer to the farm, and nothing had been done by anyone except defendant's employee up to the time the accident happened, so it doesn't seem that control had been turned over to anyone.'

The case at bar resembles an earlier case, Peschel v. Klug (1920), 170 Wis. 519, 175 N.W. 805, on its facts. In Peschel the defendants piled three timbers, each weighing about 1600 pounds, in an alley. The top timber fell from the pile, injuring the plaintiff while working in the alley. There was no evidence as to exactly what caused the injury, although there was some disputed evidence that the plaintiff bumped the timbers with a heavily loaded hand truck. The trial court directed the verdict for defendants. This court reversed, holding that there was enough evidence to allow a jury to infer that the timbers had been stacked in an improper and negligent manner. In so holding the court stated, at p. 522, 175 N.W. at p. 806:

'It is a principle quite well established that where a machine or appliance, under the management of defendant, inflicts an injury by reason of an abnormal and unexpected movement which could not have taken place had there been proper care exercised in its management or supervision, the very fact of the abnormal action, in the absence of satisfactory explanation, affords evidence of lack of such care.'

The court went on to deny the defendant's claim that the testimony of plaintiff bumping the timber precluded application of the res ipsa doctrine, pp. 522--523, 175 N.W. pp. 806--807:

'It will not do to say that, because three witnesses testified that the front wheels and handle of the truck swung around and struck the timbers, the fall of the top timber is satisfactorily explained and the principle of res ipsa loquitur does not apply. In the first place, the plaintiff and his helper testify directly that the truck did not touch the timbers before the fall of the top timber, and we cannot say that this testimony is incredible or so at variance with undisputed physical facts as to leave no jury question. In the second place, if it be conceded that the wheel or handle of the truck did strike the timbers, the questions whether some such an occurrence ought reasonably to have been anticipated by the defendants, and, if so, whether in view of such anticipation the piling was insecurely done, would still remain. It is an undisputed fact that the timbers were large and heavy timbers weighing from 1,600 to 1,800 pounds each, and it is mere matter of common knowledge that it would take a blow of great force to make the top one fall if they were piled level and on a secure foundation. It is plainly a jury question in this case whether the blow...