115 Wis. 554 | Wis. | 1902
A special verdict must cover all the controverted and material issues of fact in a case; otherwise, it will not be sufficient to sustain a judgment. It is evident that the verdict before us does not do that. The most serious questions in the case were whether there was in fact any disease or injury to the plaintiff’s liver existing at the time of the trial, and, if so, whether it was the result of the fall from the bridge. Upon the first of these questions there was a direct conflict in the evidence. The plaintiff’s experts testified 'that it was enlarged and diseased, while the evidence of one of the experts sworn on behalf of the defendant was that there was no perceptible enlargement; that it hung slightly lower than its normal position, but that fact did not indicate any disease of the liver. So this question was directly in issue, and was very material, because it is evident that the larger part of the damages awarded by the jury must have been awarded on the theory of a permanent injury to the liver. It could not, therefore, be assumed by the court that such a disease or injury existed, as was done in question No. 5-J. It should have been submitted to the jury by a separate question, and the failure to submit it is prejudicial error.
There was manifest error, also, in the charge of the court upon the third question. The principles of law applicable to this question are few and simple, and could easily have been given to the jury with clearness and brevity. Town officers are required, to use reasonable and ordinary care in looking after the highways and bridges of the town, and this covers the duty of inspection of bridges and culverts which have been long in use and are liable to decay. A failure to exercise this reasonable and ordinary care is a failure of duty, but it is only in extreme cases that the court can say that there has been a failure of duty in this regard. It is ordinarily a question for the jury. In the present ease, the court charged that
“If the bridge was defective and unsafe on account of decay of the timbers and considering the length of time the*557 bridge bad been built this condition ought to have been anticipated and hnown by the O'fficers of the town, using ordinary-care and precaution ”
Tbe evidence in tbis case showed beyond dispute that the bridge went down on account of decay of what is called tbe “swing beam.” Bearing tbis fact in mind, tbe only reasonable meaning which can be given to tbe foregoing instruction is that tbe court decides, as matter of law, in the present case, that tbe officers of the town ought to have known of the-defect. It is true that the court immediately afterward told tbe jury that if tbe unsafe condition bad existed so long that, if tbe officers bad given tbe matter reasonable attention, they must have discovered the defective condition, then they should be held to have notice of tbe defect, and that, if such was tbe situation here, then question ETo. 3 must be answered in tbe affirmative. Tbis latter instruction, however, can hardly be said to remove tbe sting from tbe first instruction above given. At best, tbe instructions seem to have been confused and confusing, and we cannot say that tbe latter one must have corrected tbe error in tbe former one, and that tbe jury could not have been misled; it rather seems that the injury must have been left in a painful state of uncertainty on tbe question.
Error is claimed because tbe plaintiffs daughter was allowed to testify as to expressions of pain uttered by her mother while on her way home, three days after the accident; also that her mother appeared to be in pain. It does not appear that these expressions were in reply to questions* or that, they were in any sense narrative in their nature, but they seem to be mere expressions or remarks indicating present pain.- Under tbe rule laid down in Keller v. Gilman, 93 Wis. 9, 66 N. W. 800, there was no error in tbis ruling.
By the Gouri. — Judgment reversed, and action remanded for a new trial.
