Wisconsin Telephone Co. v. Matson

• Decision Date: 07 February 1950
• Citation: 41 N.W.2d 268,256 Wis. 304
• Parties: WISCONSIN TEL. CO. v. MATSON.
• Court: Wisconsin Supreme Court

Page 268

41 N.W.2d 268

256 Wis. 304

WISCONSIN TEL. CO. v. MATSON.

Supreme Court of Wisconsin.

Feb. 7, 1950.

Slocumb & Bundy, R. E. Bundy, Menomonie, of counsel, for appellant.

Stafford & Stafford, R. F. Pfiffner, Chippewa Falls, of counsel, for respondent.

BROWN, Justice.

The issues for our consideration are primarily these: Does the finding of causal negligence on the part of Nielson rest on mere speculation? Is Matson responsible to third parties for the results of such negligence? Should there have been a question in the special verdict on plaintiff's contributory negligence?

There was no witness at the trial who saw a collision between Matson's truck and the plaintiff's pole, and Matson submits that the jury's finding that such a collision occurred rests only on speculation. There is no merit in this contention. Bailey was dozing but was aroused at the time and place by a bump; later the side of the truck's box was found to be broken and the contents of the box were found strewn about the broken pole. Evidence in support of the finding is not only ample; it is practically conclusive.

Next Matson submits that the finding of causal negligence as to lookout on the part of Nielson rests on speculation. We must concede that there is no evidence whatever of Nielson's conduct or of events in the period immediately preceding the collision. Unless the unexplained occurrence of the accident raises a presumption or permits inferences of negligence the finding is without support and if it falls plaintiff's whole case falls with it. Defendant's motion for judgment dismissing the complaint should have been granted unless this is a case where the doctrine of res ipsa loquitur may legitimately be employed. In Kirst v. Milwaukee, Lake Shore & Western Railway Co., 1879, 46 Wis. 489, 1 N.W. 89; Cummings v. National Furnace Co., 1884, 60 Wis. 603, 18 N.W. 742, 20 N.W. 665; and Dunham v. Wisconsin Gas & Electric Co., 1938, 228 Wis. 250, 280 N.W. 291, recovery was permitted under that doctrine which was expressed in each of those cases as follows [46 Wis. 489, 1 N.W. 91]: "* * * where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care."

In the Kirst Case the defendant railroad received the plaintiffs' carboys in good condition and delivered them broken. The question of the liability of the carrier as insurer was not in issue. Defendant argued that plaintiffs must show affirmatively in what respect defendant was causally negligent. Mr. Justice Cole held that an inference of negligence may be made, in the absence of a full explanation by the carrier, where the breakage occurred from switching which, in the ordinary course of things does not happen if those who have charge of the train use proper care. In the Cummings Case the plaintiff was injured when a bucket full of iron ore was dumped upon him. The man who handled the trip rope was not put on the stand. Mr. Justice Taylor spoke for the court thus, 60 Wis. at page 611, 18 N.W. at page 744: '* * * The accident itself was of such a character as to raise a presumption of negligence either in the character of the machinery used or in the care with which it was handled; and as the jury have found the fault was not in the machinery, it follows that it must have been in the handling; otherwise there is no rational cause shown for its happening', and the court held the question of negligence was properly submitted to the jury. In the Dunham case defendant's truck was bearing a coil of wire was driven along the highway. In some manner the end of the wire came adrift, whipped along after the truck, caught the plaintiff by the leg and injured her. The court, by Mr. Justice Nelson, said, 228 Wis. at page 257, 280 N.W. at page 294: '* * * The fact that the wire was so trailing 'speaks for itself' and permits the inference that the defendant company, or its servants, did not exercise ordinary care in securing the ends of the wire in question. We think, therefore, that the court properly instructed the jury that the doctrine of res ipsa loquitur was applicable to the facts adduced and that the finding of the jury that the trailing of the wire was due to a want of ordinary care on the part of the defendants, is supported by the evidence.'

In Koehler v. Thiensville State Bank, 1944, 245 Wis. 281, 14 N.W.2d 15, a tear gas device unexpectedly went off in defendant's bank injuring plaintiff. The device had been inspected and found to be in good condition before the occurrence. Aside from improper installation or maintenance it could be operated only by a push button or pedal. There was no testimony as to what actually set it off but the record eliminated some inferences until only the inference of negligent manual operation remained. We held that res ipsa loquitur applied and under this rule the negligence of the bank was general and alternative. Judgment for the plaintiff was affirmed.

Heretofore we have not applied the doctrine of res ipsa loquitur to automobile collisions. In Linden v. Miller, 1920, 172 Wis. 20, at pages 22, 23, 177 N.W. 909, at page 910, 12 A.L.R. 665, a collision caused by skidding on an icy pavement, we said: '* * * As a rule in auto collisions the direct cause of the accident and the controlling circumstances attendant thereon are usually not so within the control of a driver as to raise a presumption of negligence on his part. In other words, the doctrine of res ipsa loquitur does not usually apply to such accidents. * * *' It will be noted that the court has not said res ipsa loquitur will not be applied in an automobile case. We have said that 'the rule is usually not applicable', or 'it does not apply in the ordinary case'. Inferentially, when the unusual and extraordinary case comes along, the rule is available.

In Baars v. Benda, 1945, 249 Wis. 65, 23 N.W.2d 477, 480, we declined to apply it and said the rule of Hyer v. City of Janesville, 1898, 101 Wis. 371, 377, 77 N.W. 729 governed, stated as follows: '* * * Where 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 Klein v. Beeten, 1919, 169 Wis. 385, 172 N.W. 736, 5 A.L.R. 1237, we said that while the inferences allowed by the doctrine of res ipsa loquitur constitute proof of negligence, it is only where the circumstances leave no room for a different presumption that the maxim applies.

In Klein v. Beeten, supra, and in Baars v. Benda, supra, automobiles ran off the road and passengers were injured. After the accident a flat front tire was found in the first case and a broken steering gear in the second. In each of these actions we held that res ipsa loquitur did not apply because the defects may have preceded and caused the accident or they may have been caused by the car hitting the ditch. The circumstances were as consistent with the non-actionable as with the actionable cause and the jury was not allowed to speculate between them, to guess, as we said in Baars v. Benda, 249 Wis. at page 69, 23 N.W.2d at page 479, whether it was the broken steering gear or...