228 Wis. 77 | Wis. | 1938
The defendants, Jens Jensen and his automobile liability insurance carrier, appeal from a judgment against them for the recovery by the plaintiff, Viggo Jensen, of damages for personal injury sustained by him upon the overturning of Jens Jensen’s automobile, as the result of the sudden deflation of a tire. The word “defendant,” as used hereinafter, refers to Jens Jensen solely. The plaintiff was riding in the automobile as a guest of the defendant, who was driving the car. The accident happened in Alabama, while the parties were en route from Racine, Wisconsin, where they resided, to Texas. They had stopped in Indiana for two additional guests. On the morning of June 11, 1935, the third day of the trip, defendant learned that the right rear tire had become deflated, while the car was parked near the hotel at which the party stayed overnight in Decatur, Alabama. At defendant’s request, a hotel employee called a
The jury founcl/(1) that the defendant was negligent in unreasonably exposing the plaintiff to danger and injury by increasing the hazard of travel beyond that assumed by him upon entering the car (a) as to* speed, but that there was no such negligence on defendant’s part (b) as to the condition of the tires; (2) that such negligence (a) as to speed was a cause of the accident and plaintiff’s injury, but that negligence (b) as to the condition of the tires was not a cause; (3) and that the defendant ought not to have anticipated
The defendants contend that the jury’s answers in the special verdict are sustained by the overwhelming weight of the evidence, and that, at all events, in view of the conflicts therein and the inferences to be drawn therefrom, it was beyond the court’s province to substitute its findings for some of the jury’s answers. On the other hand, the plaintiff contends that undisputed evidence and reasonable inferences therefrom support only the findings which the court substituted for answers of the jury. All parties appreciate that, if the evidence is conflicting, or the inferences to be drawn therefrom are doubtful and uncertain, and there is any credible evidence which will reasonably support or admit of any inference for or against the claim or contention of any party, then the proper inference to^ be drawn is a question for the jury, and, when it has returned a verdict, its answers should not be changed by the court’s substitution of its findings for the jury’s answers; and that, on an appeal, the problem is not whether the court’s findings are more warranted by the evidence than the jury’s answers, but the inquiry is limited to the narrow issue of whether there is any credible evidence
The plaintiff,- — in contending that the evidence establishes, as a matter of law, that the defendant had knowledge of the existence of the defect, which caused the accident, and that knowing of it he ought to have realized that it involved an unreasonable risk to his guests, — relies on testimony to the following effect. James T. Simmons, an experienced automobile mechanic at Racine, who did some work on the defendant’s car two months prior to the accident, testified that he then told the defendant that the two spare tires were not of any use except for the possibility of running a short distance in case of a flat tire, and not to use them under any other condition. On an adverse examination the defendant had testified that he was aware of the fact that a tire deteriorates with age and use, and that after it gets old and has been used considerably it is apt to blow out, if it is driven fast and especially on a hot day, and that even a new tire can blow; that right after the spare tire was put on at Decatur he forgot that he had that tire in use; and he testified that if he had not forgotten about it he could “say without knowing” he
“I didn’t take them apart and examine the interior of the casings because that isn’t really my job and I haven’t any equipment for that. . . .”
Martin C. Wagner, who had considerable experience in servicing and repairing tires, likewise testified that exterior checking on a tire indicated “exposure to the weather for a long time,” and that a tire was old.
On the other hand, Simmons admitted on cross-examination,—
“The real strength lies in the condition of the fabric in the tire. Before a tire blows out, it is necessary that there be a cracking in the fabric.”
Wagner also testified,—
“Tire checks . . . are small checks showing on the outside of the rubber surface caused by the action of the sun and elements. They only affect the outside surface and do not penetrate very far. I have never known a ‘check’ to penetrate down to the fabric.”
Likewise another tire expert testified,—
“It is possible for the casing to be cracked with surface cracks without there being any damage done the fabric inside. ... I think the only way you can determine the*84 fabric break in a tire is taking it off — for fabric breaks. That is the way it is usually done in tire shops. . . . Surface checks are ordinarily not deep enough to get into the fabric. Only in case of extreme age, do' the cracks get deep enough.”
And, in respect to the issues as to' whether the defendant in fact had knowledge that the tire was defective, and if so that he ought to have realized that the defect involved an unreasonable risk to the plaintiff, there was, — in addition to matters hereinbefore stated, — but the following testimony on his part,—
“I never monkeyed with my tires and apparently they must have been in fairly good condition else I couldn’t run them but they were spares. . . . Q. Or did you consider it perfectly safe to drive with this spare tire? A. I suppose I did or I wouldn’t put it on, but I knew it was a spare tire but I wouldn’t have driven it if I didn’t think it was safe. Q. Did you regard it safe enough to drive it at a good fast rate of speed on a hot day? A. I did it. . . . Q. Did you regard it dangerous at all to drive your automobile on the day in question, weather conditions being as you stated they were, at a high rate of speed considering you had that spare tire on the rear right? A. Well, I wouldn’t have done it if I thought it was dangerous. . . . Q. Do you know of your own knowledge whether or not the tire had any fabric bruises or fabric cracks in it or any definite defects ? A. I have answered that once before that I never saw my tires.”
There is no evidence whatsoever in the record that there were in fact any bruises or cracks in the fabric of the tire, or that anything had ever happened thereto' because of which it could be inferred that the defendant knew or ought to have known of any defect therein. Even though he ought to have known of the checks on the outer surface, it does not necessarily follow, conclusively, — in view of the experts’ testimony, that such surface checks do not penetrate far or affect the fabric in which there must be a crack or bruise before a
It follows that the issues in those respects, at least, were for the jury, and that therefore the court was not warranted in substituting its affirmative findings for the jury’s negative answers in relation to' the questions in the verdict as to causal negligence and anticipation, etc., on the part of the defendant. Consequently, the judgment entered upon the verdict as changed by the court must be reversed.
However, in its order granting plaintiff’s motion for judgment on the verdict as amended, the court expressly stated that if it had not granted the plaintiff’s motion for judgment, it would have been required to' grant plaintiff’s alternative motions for either a new trial on the ground that the answers found by the jury are contrary to the great weight and clear preponderance of the evidence, or a new trial in the interests of justice. Inasmuch as it was within the court’s province to order a new trial herein in the interests of justice, at least, and as the court definitely 'stated that it would have done so on plaintiff’s pending alternative motions therefor, if it had not granted judgment for the plaintiff, and as the cause could be remanded under sec. 270.49, Stats., with directions to determine those alternative motions within sixty days after notice of filing the remittitur, it is considered proper in this case to remand the record with directions to grant a new trial, in the interests of justice, on the plaintiff’s pending motion.
By the Court. — Judgment reversed, and cause remanded with directions to enter an order granting a new trial as stated in the opinion.