141 Wis. 43 | Wis. | 1909
The following opinion was filed October 5, 1909 :
1. The first error assigned is upon refusal to -submit to the jury the question whether the injury resulted “from voluntary exposure to unnecessary danger or obvious risk of injury.” According to the great weight of authority three elements are essential to this excuse from liability: (a) Conscious knowledge of the danger; (b) intentional or wilful exposure to it; and (c) that the danger shall be unnecessary. As to the first two elements,, this court has declared itself in accord with such authority in Schneider v. Providence L. Ins. Co. 24 Wis. 28; Shevlin v. Am. Mut. Acc. Asso. 94 Wis. 180, 68 N. W. 866; and in Sargent v. Central Acc. His. Co. 112 Wis. 29, 81 N. W. 796. The only evidence upon which the court or jury could act was that the deceased was a locomotive fireman insured as such, whose duties of course took him about .the tracks in railroad yards, and that on the
2. A second error is assigned upon the refusal of the court to direct verdict that the deceased at the time of his injury was under the influence of intoxicating liquor, which fact it is claimed was established without dispute. We cannot at all agree with this view of appellant’s counsel. The evidence of any considerable use of intoxicating liquor, or influence thereof upon deceased even at any time during the evening before his death, is very conflicting; but, even if a condition of some degree of intoxication had existed, there was evidence tending to show that the last use of liquor was prior to 10 o’clock; that an hour or more of slumber succeeded it, and that as early as an hour before the casualty, on awakening from that slumber, deceased had fully recovered all his faculties and was free from any apparent influence of previous po-tations. We agree with the trial court that there was plenary evidence on which the jury might have based a negative answer to the question submitted to them.
: 4. Refusal of certain requested instructions is assigned as ■error. They assumed a state of intoxication at some time during the evening prior to the death of insured. Since, ■as we have said, this fact was in dispute, the requests were improper in form and no error was involved in their refusal.
By the Court. — Judgment affirmed. ■
A motion for a rehearing was denied December 7, 1909.