Masanz v. Farmers Mutual Automobile Insurance

Wisconsin Supreme Court

Masanz v. Farmers Mutual Automobile Insurance

40 N.W.2d 391, 256 Wis. 222, 1949 Wisc. LEXIS 431

CourtWisconsin Supreme Court

DecidedDecember 1, 1949

StatusPublished

Cited by1 cases

This text of 40 N.W.2d 391 (Masanz v. Farmers Mutual Automobile Insurance) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Masanz v. Farmers Mutual Automobile Insurance, 40 N.W.2d 391, 256 Wis. 222, 1949 Wisc. LEXIS 431 (Wis. 1949).

Pincite

Opinion

Brown, J.

Appellant submits that there was no evidence to go to the jury on the question of negligence and that Masanz assumed the risk of such negligence as there may have been.

Counsel for plaintiff contends that he is not seeking recovery on the principle of res ipsa loquitur but his oral argument and his brief, in spite of the disclaimer, show dependence upon it. He quotes at length from Dunham v. Wisconsin Gas & Electric Co. (1938), 228 Wis. 250, 280 N. W. 291, which was expressly decided upon that principle. This court has not applied res ipsa loquitur to automobile cases, recognizing that it is a principle easily abused and difficult to control, and it is not necessary to rely on it here because there is evidence sufficient to take the question of negligence to the jury. The “skid marks” or marks of dragging wheels show that Gorman was aware that the road ended but was not properly correlating his speed and his brakes. That testimony'bears directly on the management and control of the automobile and removes the cause of the *225 .accident from the realm of mere speculation. It is at least as strong as the testimony in Sullivan v. Minneapolis, St. P. & S. S. M. R. Co. (1918), 167 Wis. 518, 167 N. W. 311, which was held sufficient to support a jury’s findings that a fall from a car had occurred, which caused an injury, which injury resulted in death.

Respecting defendant’s argument that Masanz must be held to have assumed the risk of Gorman’s negligence, whatever that might be, we consider that the skid marks are not of a length or character to establish, as a matter of law, that the negligence was of such duration that Masanz was bound either to observe it and act for his own protection or to assume the risk thereof.

We hold, therefore, that the verdict is supported by the evidence and the judgment should be affirmed.

By the Court. — Judgment affirmed.

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Brown, J.

Appellant submits that there was no evidence to go to the jury on the question of negligence and that Masanz assumed the risk of such negligence as there may have been.

Counsel for plaintiff contends that he is not seeking recovery on the principle of res ipsa loquitur but his oral argument and his brief, in spite of the disclaimer, show dependence upon it. He quotes at length from Dunham v. Wisconsin Gas & Electric Co. (1938), 228 Wis. 250, 280 N. W. 291, which was expressly decided upon that principle. This court has not applied res ipsa loquitur to automobile cases, recognizing that it is a principle easily abused and difficult to control, and it is not necessary to rely on it here because there is evidence sufficient to take the question of negligence to the jury. The “skid marks” or marks of dragging wheels show that Gorman was aware that the road ended but was not properly correlating his speed and his brakes. That testimony'bears directly on the management and control of the automobile and removes the cause of the *225 .accident from the realm of mere speculation. It is at least as strong as the testimony in Sullivan v. Minneapolis, St. P. & S. S. M. R. Co. (1918), 167 Wis. 518, 167 N. W. 311, which was held sufficient to support a jury’s findings that a fall from a car had occurred, which caused an injury, which injury resulted in death.

Respecting defendant’s argument that Masanz must be held to have assumed the risk of Gorman’s negligence, whatever that might be, we consider that the skid marks are not of a length or character to establish, as a matter of law, that the negligence was of such duration that Masanz was bound either to observe it and act for his own protection or to assume the risk thereof.

We hold, therefore, that the verdict is supported by the evidence and the judgment should be affirmed.

By the Court. — Judgment affirmed.

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Bluebook (online)

40 N.W.2d 391, 256 Wis. 222, 1949 Wisc. LEXIS 431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/masanz-v-farmers-mutual-automobile-insurance-wis-1949.

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