23 N.W.2d 477 | Wis. | 1946
On September 15, 1944, Alice Baars and Nathaniel Baars, plaintiffs, brought action against Anton Benda and American Automobile Insurance Company, a foreign corporation, to *66 recover damages for personal injuries sustained in an automobile accident by Alice Baars. The matter was tried to the court and jury and a special verdict submitted. Defendant Benda was found guilty in respect of lookout, management and control. It was found that this negligence increased the hazards assumed by plaintiff, Alice Baars, when she entered Benda's automobile as guest. It was found that Benda's negligence did not persist long enough to give Alice Baars an opportunity to protest. No contributory negligence was found on the part of Alice Baars. Upon motions after verdict the trial court set aside the answers of the verdict finding Benda guilty of negligence and, upon the verdict so granted, judgment was entered on December 12, 1945, dismissing plaintiff's complaint. Plaintiffs appeal.
For convenience Benda, the host and driver, will hereinafter be referred to as the "defendant." The principal question in this case is whether the trial court was warranted in changing the answers of the special verdict, and this, in turn, is determined by ascertaining whether the record discloses any evidence of defendant's negligence. This requires an examination of the facts.
Plaintiffs are husband and wife and were guests of defendant on a hunting trip to northern Wisconsin. While the men were hunting, Mrs. Baars remained in or about the automobile. The accident occurred while returning from the hunting grounds to the place where the parties were staying. The time of the accident was between 5:30 and 6:30 p. m., on November 28, 1943. Defendant proceeded along two state highways and then turned onto County Highway C, upon which the accident occurred. He had switched on his lights before he entered Highway C. Highway C was from thirty-five *67 to forty feet wide. There were snowbanks on each side. There had been a few slippery spots on the state highway. Defendant proceeded at a moderate rate of speed with the' left side of his automobile approximately four feet from the center of the road. There was a ditch about fifteen feet from the edge of the road, and the right side of defendant's car was approximately twenty-two to twenty-three feet from the edge of the ditch as he was driving. Benda was injured and does not remember getting off the highway. All that any of the others remember is that the car suddenly left the highway and went into the ditch on the right-hand side, the nose being in the snowbank. After the accident the steering apparatus was "knocked out of kilter." That, in substance, is all the evidence in the case.
Plaintiffs argue that by operation of the rules relating to presumptions, as well as the rule of res ipsa loquitur, there were jury questions as to lookout, management and control. Plaintiffs claim that sec.
Plaintiffs argue that the above quotation governs this case since there is involved here an apparent violation of sec.
Defendant relies upon Klein v. Beeten,
Defendant's contentions are that the evidence shows his car to have been proceeding at a moderate rate of speed in its proper place on the highway, and that it suddenly left the road; that this leaving of the road in Mrs. Baars' language was "so quick, all I remember is the bump;" that the mere fact that defendant's car left the highway is not sufficient to carry the case to the jury; that sec.
We think that the ruling of the trial court was correct. It was held in Linden v. Miller,
"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."
For the foregoing reasons we conclude that the matter was correctly disposed of by the trial court.
By the Court. — Judgment affirmed. *71