Banaszek v. F. Mayer Boot & Shoe Co.

155 Wis. 127 | Wis. | 1913

ViNje, J.

In instructing the jury upon the first question the court said: “If you believe that the rollers were securely guarded you will answer this question ‘Yes.’ If, on the other hand, you find that the rollers were not securely guarded and the plaintiff 's negligence did not proximaiely contribute to the. injury j then you must answer this question Ho/” It was error to add the latter "clause with reference to plaintiff’s contributory negligence, for, manifestly, an unguarded condition, or- an' insecure guarding, of a machine, and contributory negligence on the .part of the operator thereof, may co-exist.

By a reference to the verdict rendered the only question whose answer could have been affected prejudicially to plaintiff by consulting the dictionary was the fifth. The first question was answered favorably to him, so he is in no position to claim prejudicial error as to that. The same is true of the second question. - In none of the other questions, or instructions relating thereto, was the word “proximate” .used, so the irregularity could not have affected the answers to those.

Eor the purpose of this case we will assume, though we do not decide, that the affidavits of the jurors were properly received in evidence to sustain the verdict when challenged by the specified irregularity. Notwithstanding they all unite in affirming that the verdict was not. influenced by the use of the dictionary, the trial court came to a contrary conclusion. He personally observed the jurors during the trial and was in a better, position than this court can possibly be to judge' of the effect upon them of reading a definition in a dictionary of acknowledged authority at variance with that given by the court, for the definition in the Standard Dictionary omits the element of reasonable anticipation of injury contained in that correctly given by the trial court. In view of this fact and of the rule that this court will not disturb an order of a trial court granting a new trial unless manifestly wrong, we conclude that the order must be affirmed. ’

Defendant urges that, in view of the answers given by the jury to questions 3 and 4, this court should say as a matter of law that plaintiff was guilty of contributory negligence. We are unable to reach that conclusion, and, as there must be a new trial, we forbear to discuss the question lest we might thereby foreclose the trial court and jury from giving an unbiased decision thereon under the evidence as it may then appear.

By the Gourt. — Order affirmed.