Marchant v. Franz

Gehl, J.

(dissenting). The majority says that there were duplicate findings of causal negligence on the part of the plaintiff. If I understand the contention of respondent and the conclusion of the trial court, here affirmed, it is based upon this theory: The plaintiff placed himself in a position of danger as a result of his failure to maintain a sufficient lookout; by a later observation he restored himself to a position of relative safety for a moment or two; then followed conduct permitting a finding that he was guilty as to control and with respect to sounding his horn; because of the momentary lapse of time between his failure to maintain proper lookout, and his other failures the jury should not have been permitted to find failure as to the former.

Automobile collisions do not happen piecemeal. They are the result in most cases of several concurrent failures on the part of the respective drivers, and their cause is generally determined from an observation and consideration of the entire picture.

I cannot agree that it is desirable or practicable to direct a jury to eliminate from its mind the impression gained from an observation of all the circumstances contributing to an accident and requiring them to determine to a mathematical certainty that at one point in a series of events one failure dropped out of the picture and that then all or some of the others caused the result.

In this case the jury might well have found that plaintiff’s failure to maintain a sufficient lookout placed him in a position where proper control became more difficult — if not impossible. The verdict is evidence that they did so find. It seems to me that to determine that there has been a duplication of findings, a much clearer case should appear than is presented here.

The facts in this case are clearly distinguishable from those considered in Crawley v. Hill, 253 Wis. 294, 34 N. W. (2d) 123, cited by the majority. In that case the court says, in effect, as the facts and circumstances required it to, that there was only one possible failure on the part of the defendant — a failure to observe that plaintiff was running into the lane of traffic; that by his failure in respect to lookout he placed himself in a position where nothing else which he might have done would have prevented the accident. No more can be read out of the Crawley Case than a declaration that where an injury results from but one act or omission, from a single phase of negligence, it is error to permit the jury to consider other alleged violations.

The distinction between the two cases appears from the following statement in the Crawley Case (p. 298) :

“This is not a case where after a failure of lookout ceased the defendant m the management of his car was guilty of negligent management and control.”

The jury might have considered that this was just that sort of case; that the first failure, lookout, although it had momentarily ceased, was followed by failure in other respects, and that there was such co-operation between all the failures as to make all of them causes of the collision.

The trial court should have permitted the verdict to stand.

I am authorized to state that Mr. Justice Hughes concurs in this dissent.