*1 459 Administrator, Special vs. Van Brunner, Respondent, another, Hoof Appellants.* May 3, 8 June 1958.
* denied, costs, for rehearing 7, Motion on October $25 1958. *4 Everson, For the was a brief there appellants by Ryan, & Whitney O’Melia Green and oral Bay, argument by E. L. Everson L. and James Everson. Lehner,
For the there was a brief respondent Lehner & Falls, of Oconto and oral Behling Howard N. argument by Lehner. The main
Hallows, two are: questions presented J. Did the trial court err instruc- (1) giving unrequested loquitur tions on view of ipsa evidence and where acts of in the about verdict inquired and no on was submitted? general question (2) ipsa Did the of such res loquitur instructions consti- giving ? tute error prejudicial first contention ipsa was the res appellant’s loquitur correct form was not
instruction although applicable. *5 464 of from the strict to the
width and breadth
res ipsa loquitur
R.
are
annotated in 33 A. L.
liberal rules
extensively
(2d)
rule no
et
Under
authorities
strict
793
seq.
adopting
of
can be shown without
acts
precluding
specific
negligence
rule,
the liberal
reliance
the doctrine. Under
which
upon
follows, the
in cases
doctrine
may
applied
Wisconsin
introduced.
where evidence of
is
Com
specific negligence
159,
merce
271 Wis.
Ins. Co. v. Merrill Gas Co. (1955),
771;
72 N. W.
Dunham v. Wisconsin Gas & Electric
(2d)
250,
N.
But under the
228
The evidence produced was and as lock missing defective because free the hand screw was to loosen. consequence than the Wesley of a different slightly shape Hoof ball was hitch. There was also varia- fitted the Wesley ball which ball-and- on the two balls. The in the point tion clamping moved more freely used defendant hitch combination in combination. The hitch used ball and than no assembly the hitch showed condition of postaccident This was suffi- any part. failure or breakdown of structural other evidence cient evidence of res ipsa loquitur inapplicable. doctrine make the to instruction was an contends inapplicable appellant on the to for the negli- find respondent invitation credible evidence spe- There was ample question. gence the jury finding to support cific or the inference to be the doctrine reference to any without
On 4^ Cri *6 the two from it. The between jury distinguished drawn submitted. The found defendant jury of negligence questions Fulton, the or trailer Hoof in Wesley, Van negligent using hitch lock. There was undisputed testimony without safety a lock his boat-trailer hitch but that the defendant had on device he not know there was to be locking did supposed the hitch he used it. The defendant knew on when Wesley hitch his ball combination had used the with own Wesley had used This was the first time the defendant times. many hitch. There evidence that had the was undisputed the hand hitch been with a lock safety the Wesley equipped the ball could screw could not have loosened and and clamp The have become evi- not uncoupled. appellant produced IToof and turned that Van put assembly together dence the combination He tested tight. by shaking the wheelscrew it at and several times and inspected Spruce it down up case for lake. In close the effect before leaving Kelly to add or res ipsa loquitur strengthen permissi- allowing from evidence introduced inference which can drawn ble of that jury makes finding by specific negligence this is not a close case on But more probable. negligence the evidence. no instructed on and
The was jury properly or there- objections instructions on requested The of the raised the defendant. position inapplicable to that instruction on between part neg- res ipsa loquitur cause is not neces- instruction on ligence part as a The effect of the instructions whole sarily prejudicial. is the produced evidence light jury on whether there was element in considering prejudi- important error. cial contention that the not agree appellant’s
We do determination on affected jury’s instruction inapplicable care in Hoof ordinary finding negligent the issue of without a lock. doctrine the hitch supplied using an inference of for only or jury accept If reject. the instruction res an on ipsa loquitur was invita- tion to the to find jury negligence it from the apparent evidence and the that the did not findings accept invitation nor itwas misled.
By affirmed. Judgment Court. — CuRRiE, I cannot that the agree erro- (dissenting). J. neous instruction on not prejudicial ipsa loquitur the instant case. item of *7 only found the defendant against
Van Hoof was in the trailer hitch without a “using Wesley lock” the of first of the (sub. (b) question verdict). to the
As subdivision of the verdict this dealing par- ticular item of the trial court instructed the jury as follows:
“You in are instructed that order to answer subdivision ‘Yes,’ (b) first must be convinced a question you reasonable the certainty greater weight of credible evidence or from inferences drawn from the evi- reasonably defendant, Ploof, that dence either knew that the Wesley hitch was of the absence defective because of locking device, or that in of care he have ordinary exercise should known that the hitch was defective because Wesley of device, absence knew, of such further he and that locking known, or in exercise of care should have that it ordinary to use the hitch without dangerous such locking device.
“You that car are instructed where the attached to the defendant, trailer is of by hitch under the management and the is such as of ordinary accident course things does not if the had the defendant who happen management care, of the combination vehicle used and control proper evidence, the accident reasonable in the absence affords itself that the accident arose explanation by defendant, of from (Italics supplied.) of defendant.” effect taken as a whole is to tell of such instruction the first that order to answer sub. of question jury (b) that of “Yes” the must find either Van Hoof the verdict locking of the absence of the knew or should have known device, inferred from the but that this happening could However, the of the accident the accident itself. happening actual on the issue of Van Hoofs relevancy has no whatever device. locking or constructive absence of knowledge erroneous instruction It to conceive how such an is hard fail to be prejudicial. could of the first answered sub. that the jury (a)
The fact a non wholly Hoof’s favor of the verdict Van question instruction is because the erroneous appar- This sequitur. at or least the jury to sub. (b) related only ently in so assuming. warranted attacked instruc- nature of the
Because prejudicial reversed, re- and the cause should be the judgment tion trial. for new manded Mr. Brown Mr. to state that
I am authorized Justice Wingert in this dissent. concur Justice