Mayer v. Boynton Cab Co.

66 N.W.2d 136, 267 Wis. 486, 1954 Wisc. LEXIS 297

• Court: Wisconsin Supreme Court
• Decided: October 5, 1954
• Status: Published

Opinions

Brown, J.

We are of the opinion that the order complained of must be reversed because the learned trial court was in error concerning the effect of the doctrine of res ipsa loquitur and this misconception was fundamental to the order entered by the court.

We do not- determine that the circumstances present a proper case for the application of the res ipsa loquitur rule but if they do, as the trial court believed, the rule was misapplied. The effect of that rule is to permit a jury to infer from the circumstances that causal negligence was present although the party who has alleged it is unable to produce evidence to specify the respect in which the other party was derelict. We have studied the Wisconsin res ipsa loquitur decisions cited by the learned trial court and by respondents and we find that in each such case a finding of causal negligence by the jury was attacked on the appeal as being without support in the evidence. When we affirmed we did so because the circumstances of the particular case warranted, the inference by the jury that the accident would not have occurred if those in charge had used proper care. Res ipsa loquitur made a jury question out of an issue which otherwise would fail for lack of proof. It prevented the jury’s finding of negligence from being set aside for lack of evidence to support it. But we have never gone so far and do not intend now to follow the trial court to the extreme of declaring that res ipsa loquitur does more than take the case to the jury. If the jury does not see fit to draw the inference of negligence or to consider the occurrence of the accident, under the circumstances, persuasive of negligence, the court abuses its discretion when it invades the jury’s function by giving the rule greater probative force than the jury has accorded it. In the instant action the trial court’s order states that “the negative answers of the jury to questions No. 2(a) and 2(b) [the negligence questions] . . . are contrary to the great weight of the evidence, . . .” There was absolutely ho evidence of the driver’s negligence except as negligence might be inferred from the fact that an injury was sustained, — that is, by substituting the doctrine of res ipsa loquitur in the place of testimony. And, of course, jury findings are not required to be in accord with the great weight of the evidence in order to stand. It is sufficient for them that there is some evidence in their support. The driver’s testimony presented him as one who drove carefully in all respects at a speed not exceeding 15 miles per hour. While Mrs. Mayer testified that he was going 40 miles per hour at the time she claimed to have been thrown from her seat, this testimony received so little credit that the trial court did not even submit a question of negligent speed to the jury, nor did it make any reference to excessive speed in its opinion or the order directing the new trial. The matter of speed dropped out of the case in the trial court. Under the res ipsa loquitur doctrine on which the trial court relied, on plaintiffs’ side there was the fact of an injury from which the jury might possibly have drawn an inference of negligence on the part of the defendant but which it did not see fit to do. The great weight of evidence, if such were needed, concerning lookout and management and control is plainly with the defendant.

The trial court considered the allotment of damages to Mrs. Mayer, $1,290, was so inadequate as to show that the jury was perverse. The jury observed Mrs. Mayer. She was not a well woman before her experience in defendant’s cab. She walked with a cane and a crutch which one doctor testified would put an abnormal strain upon her back. She testified that she never had back pains until the cab incident but she also testified that she had never undergone surgery. Her counsel put her on the stand later to correct this and he also produced her surgeon who testified that the operation he performed on her was sometimes .done because the patient suffered from backaches. The jury was well warranted in considering that not all of the suffering which followed the ride in the Cab was attributable to it. It was asked what sum would compensate Mrs. Mayer for damages she sustained “as the direct result of the injuries sustained by her on or about the 23d day of September, 1949.” Her history justified skepticism and the jury might discount some of her claims without perversity.

We conclude that the trial court erred in denying defendant’s motion and granting that of the plaintiffs.

By the Court. — Order reversed, and cause remanded with directions to reinstate the verdict and grant judgment upon it to appellant.

Steinle, J., took no part.