221 Wis. 28 | Wis. | 1936
The following opinion was filed February 4, 1936:
The trial court erred in overruling the insur- . anee carrier’s plea in abatement.
The defendant, Charles W. Thorpe, was driving the automobile which was involved in the collision that resulted in injuries to the plaintiff, Alma Byerly, with the consent of its owner, B. E. Thorpe. He was a resident of the state of Illinois, and the Hartford Accident & Indemnity Company’s policy, upon which plaintiffs seek to recover, was written
The evidence conclusively establishes the following facts in respect to the collision, which occurred on July 22, 1934, about eight miles east of Janesville, Wisconsin, on a concrete highway which was eighteen feet wide, with the usual black center line, and which was straight and level for a considerable distance to the east and west: Alma Byerly was riding in the rear seat of a westbound automobile operated by her brother, H. L. Dippel. The weather was very hot, and to avoid overheating the motor, Dippel was driving at thirty-eight to forty miles per hour on the right side of the highway, with the left wheels of his car at least a foot to the right of the center line. The defendant, Thorpe, operating a 1933 Pontiac sedan, and accompanied by three guests, was driving from Chicago to Evansville, Wisconsin. He testified, without contradiction, that before leaving Chicago he had made two inspections of the tires on that car; that they were new; and that they appeared to be in good shape. He had the air checked the night of July 21, 1934, at a filling station in Forest Park, Illinois. Thorpe', who was driving in the same direction as Dippel, approached the latter’s car from the rear
Dippel, without hearing any prior warning or signal of any kind, heard a sudden screech of brakes, to his rear and instantly a terrific impact, as the left side of the rear bumper of his car was struck. The impact pushed his car forward at a high rate of speed, and caused it to' swerve off to the right, and then veer to the left, and follow a rather steep bank. He finally righted the car, but, while he was trying to control it and while it was following the bank on the left side of the highway, the plaintiff was severely injured. After the impact, Thorpe’,s car skidded and swayed for eighteen feet, and then rolled over twice and came tO' a stop with the rear end thereof against a tree two' hundred twenty-four feet beyond the point of impact.
Undisputed testimony by witnesses, who qualified as experts on the subject, established that the deflated tire, which was a United States Royal with a very good tread, appeared
The jury found that the collision was caused by Thorpe’s negligence in respect to, (1) the speed at which he drove; (2) the manner in which he drove, managed, and guided the Pontiac automobile; and (3) the distance at which he followed Dippel’s car just before the collision.
Defendants contend that there is no credible evidence to sustain those findings; but that, on the contrary, the evidence necessitates the conclusion that the sudden and unforeseen deflation of the tire, without any negligence on Thorpe’s part, was an intervening and efficient cause of the accident, which was unavoidable; and that, therefore, Thorpe is not liable for the consequences thereof.
Those contentions must be sustained. There is no finding, and the evidence would not admit of any finding, that there was any negligence on Thorpe’s part in respect to the tire or the sudden and unexpected puncturing and deflation thereof. That was clearly an unavoidable accident which 'was not the result of any negligence on Thorpe’s part. Even if he was negligent prior to, or up to the time of, the deflation of the tire, in driving at an excessive speed, or in following at that speed as closely as twenty-five or thirty feet behind Dippel’s car, or in not turning to the left sooner in order to pass that car, the real and efficient cause of the collision was, obviously, that accidental and unavoidable de
“Whenever a new cause [independent intervening circumstance] intervenes which is not a consequence of the first wrongful cause, which is not under the control of the wrongdoer, which could not have been foreseen by the exercise of reasonable diligence by the wrongdoer, and except for which the final injurious consequences would not have happened, then such injurious consequences must be deemed too' remote to constitute the basis of a cause of action.”
See also Wilczynski v. Milwaukee E. R. & L. Co. 171 Wis. 508, 177 N. W. 876; Seaver v. Union, 113 Wis. 322, 89 N. W. 163; McFarlane v. Sullivan, 99 Wis. 361, 74 N. W. 559, 75 N. W. 71; Rusczck v. Chicago & N. W. R. Co. 191 Wis. 130, 210 N. W. 361; Wharton, Negligence (2d ed.), p. 110, § 134.
On the other hand, the evidence does not admit of finding that the impact was caused by any negligence on the part of Thorpe during the momentary interval between the deflation and the impact. As that deflation and the resulting precipitation of his car to the left were not attributable to negligence on his part, his attempts to avoid the imminent danger which suddenly confronted him, cannot be held negligent merely because it may seem, subsequently, upon more deliberate consideration, that he failed, in that emergency, fi> do that which would have been best. Williamis v. Duluth St. R. Co. 169 Wis. 261, 171 N. W. 939; Sharkey v. Shurman, 170 Wis. 350, 174 N. W. 912; Johnson v. Prideaux, 176 Wis. 375, 187 N. W. 207 ; Seligman v. Hammond, 205 Wis. 199, 236
By the Court. — Judgments reversed, and causes remanded with directions to1 enter judgment in each action dismissing the complaint.
A motion for a rehearing was denied, with $25 costs in one case, on March 31, 1936.