209 Wis. 362 | Wis. | 1932
Defendant’s first contention is that the evidence does not sustain the finding of the jury that deceased was negligent. This requires an examination of the facts. The collision occurred about six o’clock in the evening of January 30, 1931. The plaintiff was driving his Chevrolet truck in a southerly direction on state trunk highway 29, a short distance south of Stanley. The deceased was driving his Oldsmobile coupe in a northerly direction on this highway. Plaintiff’s truck was equipped with a platform eighty-two inches wide, which extended ten inches beyond the wheels and was not equipped with clearance lights. The headlights of both cars were lighted. The road was straight for a considerable distance on either side of the place of the
Defendant’s contention is that, at most, the evidence merely shows an unexplained invasion by deceased upon the plaintiff’s side of the road; that there is evidence that the left front tire of deceased’s car was blown out; that there is a strong presumption that the deceased used due care for his own safety, and that the jury was compelled either to accept the hypothesis of the blowout as a cause of the accident, as in Seligman v. Hammond, 205 Wis. 199, 236 N. W. 115, or to conjecture or guess as to the explanation for deceased’s presence on the wrong side of the road. It is further claimed that the Seligman Case is squarely in point and supports defendant’s contention. In the Seligman Case the car of deceased swerved suddenly to the wrong side of the road, so sharply that the right side of deceased’s car struck that of plaintiff’s. There was a blowout of the left front tire of deceased’s car, although there was no physical impact to account for it. The jury found the deceased free from negligence, and this court held that there was enough evidence, in view of the law, to warrant the jury in coming to that conclusion.
This is quite a different case. Here the jury came to the opposite conclusion, and we think it was permissible for them to do so. It was recognized in the Seligman Case that the mere operation of a car upon the wrong side of the highway makes at least a prima facie case of negligence and is enough,
The next contention of the defendant is that upon the evidence plaintiff was guilty of negligence as a matter of law. Defendant’s first contention was based upon the concession, for purposes of argument, that the deceased did invade plaintiff’s side of the road. This contention is based upon the claim that plaintiff in fact was driving to the left of the center of the road, and that the accident happened just as plaintiff was in the act of trying to swing back to the right side of the highway. Since plaintiff testified positively to the effect that he was driving on his own side of the highway, and that the deceased was not, there was clearly a jury question unless plaintiff’s testimony was so contrary to the physical facts as to fall within the doctrine of Stryk v. Sydarowich, 198 Wis. 542, 224 N. W. 479; Samulski v. Menasha P. Co. 147 Wis. 285, 133 N. W. 142. Defendant’s argument that the physical facts are consistent only with the conclusion that plaintiff was on the wrong side of the highway at the time of the accident is based upon an elaborate analysis and interpretation of the various dents, scratches, and marks left upon the two cars by the impact of the collision. No useful service will be performed by a detailed discussion here of this contention. We conclude that while inferences favorable to
The next contention of the appellant is that since deceased was instantly killed in this collision, by the very act which is alleged to have created a cause of action in the plaintiff, no cause of action against the deceased ever existed in his lifetime, and that the survival statute does not apply. In order for a cause of action to arise, it is contended that there must exist at the same time a person to whom a duty is owed, a person owing the duty, and some act constituting a breach of that duty. It was the rule at common law that there could be no cause of action for death by wrongful act because the event that would normally create a cause of action destroyed the person in whom the cause of action must necessarily be created. To obviate the injustice resulting from this rule, statutes creating a cause of action for death by wrongful act have been generally adopted. It is now argued that the same principle applies to the deceased; that the deceased was destroyed by the very act that is alleged to have constituted a tort; that no cause of action existed against him in his lifetime ; that there was nothing to survive, and that there is no statute creating a cause of action against his estate. This contention is ably defended and difficult to answer on principle. However, we do not find it necessary to decide, and we do not decide, whether the principle contended for is valid. While in this case the proof is that the death of the deceased probably followed instantly the blow that crushed his skull, it does not follow that his death antedated a cause of action in the plaintiff. Certainly his negligent act preceded his death, and certainly the impact and some damage to plaintiff’s car also preceded it.
Under these circumstances a cause of action existed in plaintiff prior to the death of deceased. While it probably is a matter of speculation whether plaintiff’s personal injuries
In the leading case of King v. Chicago, M. & St. P. R. Co., supra, the court took the position that the cause of action consists of the negligent act which produced the effect, rather than in the effect of the act in its application to different primary rights.
We have concluded that the majority rule is sound, and that, to adopt the phrasing of the Minnesota court, it is “more in harmony with the tendency towards simplicity, and directness in the determination of controversial rights.” It is not necessary to adopt the suggestion of the Minnesota court, that the cause of action consists of the negligent act, if that is the intended holding in the King Case. We think the primary right of the plaintiff in such a case as here presented is to be free from damage to person or property by reason of the negligent acts of others. We simply decline further to classify plaintiff’s primary right, or to consider his rights to security of person to be distinct and separate from his right to the same security with respect to his property. When the
Defendant finally contends that the record discloses several reversible errors. The first relates to an instruction of the court. The court instructed the jury that “the evidence indicates very strongly that someone was to blame for that collision. You will determine who it was, whether it was both drivers or one, and if so, which one.” Later in the instructions the court said: “If each of the drivers had obeyed the law, no collision probably would have resulted. Who was to blame? Was one party to blame, and if so, which one? Or were they both to blame ?” A somewhat similar instruction was condemned in Zutter v. O’Connell, 200 Wis. 601, 229 N. W. 74, and in the words of Mr. Justice Owen in that case, “the statement . . . will not bear analysis” since it leaves no room for the jury to find that the collision was the result of an unavoidable accident. However, in view of our conclusions, hereafter set forth, it is not necessary to determine whether the instruction constituted prejudicial error.
The second objection is to an instruction that relates to defendant’s failure to call as witnesses two persons who rode in the car with deceased. The instruction was as follows:
“You should also consider the failure of the defendant to call as witnesses the two persons who rode in the car of the deceased. It is true that either party might have subpoenaed those witnesses and produced them here. Ordinarily a person calls witnesses associated with them or with their side of the transaction, and if they fail to call them when it be*370 comes a matter of dispute in court, their failure to call them is a circumstance against them, the weight of which is for the jury to consider.”
This contention puts in question the inferences that are permissible from the conduct of a party to a suit.
“The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavorable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which make some other hypothesis a more natural one than the party’s fear of exposure. But the propriety of such an inference in general is not doubted. The non-production of evidence that would nathrally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party’s cause.” 1 Wigmore, Evidence (2d ed.) § 285.
This inference is based not merely upon non-production, but non-production when it would be natural to suppose that the witness would have been produced if the facts known by him had been favorable.
Since the question relates to the inference of 'fact that may be drawn from the conduct of a party to the litigation, and since the permissible inference must vary with the facts, an examination of the facts is necessary. The two persons who were occupants of the deceased’s car were, respectively, a woman who was the proprietor of the hotel at which deceased was living, and another passenger whose relation to the deceased does not clearly appear. It is respondent’s contention that since one of the passengers was the proprietor of the hotel at which deceased was living, and since, in the course of a statement admitted as part of the res gesto?, she referred to
Objection is made to the admission of evidence that Mrs. Rathgaber made the statement heretofore referred to, immediately after the accident. It is claimed to be hearsay and not part of the res gestee, for the reason that it relates to a fact prior to the accident rather than to the events which happened at the time of the accident. We think this objec
In view of the conclusion that the instruction, heretofore discussed, constituted prejudicial error, it follows that the judgment must be reversed and a new trial granted.
By the Court. — Judgment reversed, and cause remanded with directions to grant a new trial.