200 Wis. 485 | Wis. | 1930
The following opinion was filed December 3, 1929:
The crucial facts are not in dispute. Defendant Manthey’s automobile was wrecked on a dark night in about the middle of a public, country highway, by colliding with an automobile driven by one Stickler. Manthey’s car was disabled so that it could not be moved on its wheels, and its headlights could not function. At the place of collision the traveled portion of the highway was about seventeen feet wide, and there was enough room on both sides of Manthey’s automobile for others to pass. Manthey immediately rode in a passing automobile to the nearest village, about three miles away, and there promptly arranged with E. H. Priebe, who conducted a service garage and had the necessary facilities for towing a wrecked automobile, to remove Manthey’s automobile immediately to Priebe’s garage. Meanwhile, Stickler went to plaintiff’s home, near the place of collision, and had plaintiff telephone to Priebe about the wreck. Priebe then told plaintiff that he would send his wrecking automobile in charge of plaintiff’s brother, Louis Menge, and requested plaintiff to assist him. Plaintiff arrived at the wreck fifteen minutes before Manthey returned on Priebe’s wrecker, in charge of Louis Menge,
When Manthey returned with the wrecker he stood off to the rear of his automobile, and did not give any orders or directions to any one.
At the conclusion of the trial the jury returned a special verdict, but on motions after verdict the trial court concluded that from the time that Priebe’s men began the work incidental to such removal Priebe was in possession of Manthey’s automobile as bailee and independent contractor, and as such was the responsible party for negligence in the work of removal. Accordingly, notwithstanding the verdict, judgment was ordered dismissing the complaint on the merits.
While Manthey was thus proceeding diligently and efficiently to procure the removal of the wreck, its presence on the highway was not unlawful. The inhibition of sec. 85.02, Stats., - prohibiting the parking or leaving of any vehicle on a public highway so as to interfere with the free passage of other vehicles, does not apply, under the facts in this case, because that statute, by an express exception, is not applicable “when making absolutely necessary repairs,” and is only violated by a voluntary parking or leaving which is not compulsory because of an accident or emergency. Kastler v. Tures, 191 Wis. 120, 124, 210 N. W. 415. The requirement that there shall be left a free passage of at least eighteen feet, -so that vehicles going in opposite directions may pass without interference from any standing vehicle, is not applicable to an automobile
When, on the arrival of Priebe’s wrecker, Louis Menge took full charge of the removal of the wreck, and, pursuant to his directions, plaintiff attached the wrecker’s chain to Manthey’s automobile, the possession thereof was in Priebe as a bailee for hire; and Manthey, as the bailor, was not liable for any negligence of Priebe’s employees while he was in possession and control of Manthey’s automobile as such bailee. Whalen v. Sheehan, 237 Mass. 112, 129 N. E. 379; Calumet Auto Co. v. Diny, 190 Wis. 84, 208 N. W. 927. And that is true although the bailor, Manthey, was present at the time of the bailee’s negligence. Smalley v. Simkins, 194 Wis. 12, 215 N. W. 450.
As Priebe was furnishing and using his own apparatus, and proceeding according to his own methods, with a crew which he provided, without any attempt on Manthey’s part to exercise any control or give any direction in relation to the removal of the wreck, Priebe was an independent contractor in effecting such removal. Madix v. Hochgreve B. Co. 154 Wis. 448, 143 N. W. 189; Weyauwega v. Industrial Comm. 180 Wis. 168, 192 N. W. 452; Machae v.
The rule that when the doing of work in the ordinary mode necessarily or naturally results in producing a defect or nuisance which causes injury to others, a proprietor cannot relieve himself entirely from liability by delegating the performance of such work to an independent contractor, is not applicable under the facts in this case. The removal of a wrecked automobile in the usual and customary manner, by towing, it in back of a wrecking car which has properly functioning headlights, is not necessarily or inherently dangerous. Hence, the performance thereof in such usual and customary manner could be delegated by Manthey to Priebe as an independent contractor, and Manthey thereby became absolved from liability for any negligence in connection with Manthey’s automobile, after Priebe was in possession and control thereof. Kolb v. Hayes, 194 Wis. 40, 47, 215 N. W. 578.
For the reasons stated, Manthey is not liable for the unfortunate injuries sustained by plaintiff. The judgment must be affirmed.
By the Court. — Judgment affirmed.
A motion for a rehearing was denied, with $25 costs, on February 4, 1930.