00-3258 Burg, by his Legal Guardian, Gladys M. Weichert v. Cincinnati Casualty Insurance Co.

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“‘Operate,’ under Wis. Stat.sec. 350.01(9r), includes ‘the exercise of physical control over the speed or direction of a snowmobile.’ ‘Operate,’ therefore, necessarily encompasses a person’s actions in stopping a snowmobile and turning off its motor because, literally, such actions do ‘exercise physical control over the speed and direction’ of the snowmobile. The fact that such actions stop the snowmobile certainly renders those actions no less controlling of speed and direction than other actions that accelerate the snowmobile or change its course.

“Further, under the statute, turning off the motor certainly, and quite literally, involves ‘the physical manipulation … of the controls of a snowmobile necessary to put it in motion.’ The fact that the manipulation stopped the snowmobile’s motion certainly renders that action no less a manipulation of the controls necessary to put the snowmobile in motion. …

“As Burg correctly argues, the legislature, quite obviously, enacted the detailed requirements of Wis. Stat sec. 350.09 in part because it ‘wants snowmobilers at night to illuminate their head and tail lamps so other people in the vicinity can see them.’ [citation] To conclude, nevertheless, that the mandate of sec. 350.09(1) does not apply to the circumstances of this case would indeed be ‘stupid.’ Such a conclusion would require an absurd statutory interpretation precluding the literal reading and commonsense application of the statute to one of the most serious dangers these safety standards are intended to prevent.”

Plaintiff is entitled to a new trial on both liability and damages.

Reversed.

Recommended for publication in the official reports.

Dist I, Milwaukee County, Malmstadt, J., Schudson, J.

Attorneys:

For Appellant: Victor C. Harding, Milwaukee

For Respondent: Gregory J. Cook, Wausau; Anthony P. Hahn, Wausau