Weber v. Walters

67 N.W.2d 395, 268 Wis. 251, 1954 Wisc. LEXIS 459

• Court: Wisconsin Supreme Court
• Decided: December 7, 1954
• Status: Published

Opinions

Gehl, J.

The jury’s finding that Fletcher was negligent with respect to the manner in which he controlled his truck is not attacked. Plaintiff contends that the court should have found as a matter of law that such negligence was a proximate cause of the collision. That is the sole question presented upon this appeal.

“The rule of law is well established that if the evidence is conflicting, or if the inferences to be drawn from the credible evidence are doubtful and uncertain, and there is any credible evidence which under any reasonable view will support or admit of an inference either for or against the claim or contention of any party, then the rule that the proper inference to be drawn therefrom is for the jury should be firmly adhered to and the court should not assume to answer such question either upon a motion for nonsuit or direction of verdict, or by substituting another answer after the verdict is returned. Wisconsin Telephone Co. v. Russell (1943), 242 Wis. 247, 252, 7 N. W. (2d) 825, and cases there cited.” Czerniakowski v. National Ice & Coal Co. 252 Wis. 112, 115, 31 N. W. (2d) 156.

The fact that the testimony is uncontradicted does not of itself require that the court determine as a matter of law that an act found to have been negligently performed is a substantial factor in bringing about harm to another. Facts reasonably inferable from the evidence may be considered.

“Where undisputed facts permit of different inferences a question of fact and not of law is presented.” Eckhardt v. Industrial Comm. 242 Wis. 325, 329, 7 N. W. (2d) 841.

There is practically no dispute in the testimony as to Fletcher’s conduct. The jury no doubt considered that his failure to apply his brakes earlier or more effectively, or his omission to steer his car so as to avoid a collision constituted negligence as to control.

“Whether by reason of negligence on his part in either or both of those respects, he failed to keep the [truck] under proper control and thus contributed in causing the collision was a question for the jury.” Webster v. Krembs, 230 Wis. 252, 258, 282 N. W. 564.

“What is proximate cause is ordinarily a question for the jury if the evidence is conflicting or if different inferences can be drawn from it. Schultz v. Brogan, 251 Wis. 390, 29 N. W. (2d) 719, and ‘if the evidence is conflicting or, although not contradictory, is open to two or more reasonable inferences as to what actually took place, the case must be left to the jury.’ Sec. 434, comment c, Restatement, 2 Torts, p. 1172, quoted with approval in Pfeifer v. Standard Gateway Theater, Inc., 262 Wis. 229, 233, 55 N. W. (2d) 29.” Roeske v. Schmitt, 266 Wis. 557, 568, 64 N. W. (2d) 394.

We are of the opinion that the court properly held that the question of the causal relationship between the negligence found and the collision was for the jury.

By the Court. — Judgment affirmed.

Steinle, J., took no part.