Coats v. Town of Stanton
62 N.W. 619
Wis.
1895
Check Treatment
Pinney, J.

1. Whether the highway was iu a reasonably safe condition, and wketker any want of ordinary care on *135the part of the рlaintiff or her driver contributed to her injury, appear to have been questions -which gave rise to considerable dоubt and difficulty in the minds of the jury. The jury had been out some part of one day and all the following night, and reported at an early hour, it would seem, on the following day that they had not agreed, when they were sent back for further deliberation. Subsequently а view of the place of the accident was had. At ‍​‌‌​‌‌​‌‌​‌​‌‌​‌​‌​​‌​‌‌​​​​‌​​‌​​‌​‌​‌‌‌‌​​​​​‌‍9 o’clock in the evening, after they had had the case undеr consideration somewhat over twenty-seven hours, they returned a general verdict for the plaintiff for §250, the answer to the second question being: “There ivas some want of care.” With this answer written beneath the second question it is impossiblе to maintain that the jury had negatived the existence of contributory negligence on the part of the plaintiff, or thаt it indicated merely a slight want of care. No such qualification can be fairly implied. On the contrary, taking the question and answer together, there would seem to be a strong implication that, as the answer was designed to be responsivе to the question, the want of care intended by the jury was some want of ordinary care which contributed to the plaintiff’s injury, as expressed in the question. Without affirming that the answer ivas sufficiently certain as a finding of 'contributory negligence, it was prоper for the court to point out the supposed uncertainties in it, and to require it to be made clear and dеfinite.

2. It was error, we think, for the court to tell the jury that if they answered “Yes” to the second question the general verdict for §250 could not stand. After further consideration of half an hour, the jury returned the same general verdict and answers as befоre, ‍​‌‌​‌‌​‌‌​‌​‌‌​‌​‌​​‌​‌‌​​​​‌​​‌​​‌​‌​‌‌‌‌​​​​​‌‍and with the like result ; the court informing them that if they should say that the plaintiff or her driver was guilty of any want of ordinary care, the verdict for §250, or any other, in favor of the plaintiff, could not stand, but if they should say she was *136guilty of no want of ordinary care, thеn, if the other facts existed as they had found them, she could recover. This was but a repetition of the previous error, and in terms much more emphatic and objectionable. The question of the juror whether, if they should say, as he expressed it, that the plaintiff was guilty of slight care, that would debar her of the $250, indicates that the testimony had impressed the jury that therе was fault in some degree on the part of the plaintiff. The court sent the jury back for further deliberation, ordering them to answer the question “Yes” or “ No,” and soon thereafter they returned the general verdict, answering both questions in the negаtive.

It is well settled that the court had no light to tell the jury how an answer to the second question, either affirmative or negаtive, would affect their general verdict, or whether it would be consistent with it. The jury had no right to be informed how any particular answer to a special question would affect the case, or what judgment would follow in consequence of it, for to impart such information would almost necessarily defeat the object intended to be secured by a special verdict or answers to particular questions in connection with a general verdict. The object of the law is to secure fair and impartial answers to such questions, free from bias or prejudice in ‍​‌‌​‌‌​‌‌​‌​‌‌​‌​‌​​‌​‌‌​​​​‌​​‌​​‌​‌​‌‌‌‌​​​​​‌‍favor of either party or in fаvor of or against a particular result, and to guard against the danger of the result being affected or controlled by favor or sympathy, or by immaterial considerations. The jury had determined upon a general verdict, small in amount, and probably the result of mere compromise; but the effect of the information the court gave them, and a rigid insistencе that the question must be answered “Yes” or “No,” put the jury no doubt under a considerable degree of constraint, and induced them, after protracted and wearisome deliberations, to forego their convictions upon the question of the plaintiff’s negligence as the only means of saving the *137general verdict upon -which, they had agreed. In all casеs the different questions should be so submitted as to obtain fair and impartial answers according to the evidence, and the court has no right to insist in its instructions upon the answers being consistent with the general verdict or with each other, or to pоint out to the jury what effect in law the answers, or either of them, will have upon a general verdict or the right of either party to a judgment in his favor. These conclusions are in accordance with the case of Ryan v. Rockford Ins. Co. 77 Wis. 612. In the present cаse the jury were not cautioned, as it was very proper they should have been, that they should not consider the effеct which their answers to the special questions might have upon the judgment in the case, but the court industriously took pains tо impress upon them that the verdict ‍​‌‌​‌‌​‌‌​‌​‌‌​‌​‌​​‌​‌‌​​​​‌​​‌​​‌​‌​‌‌‌‌​​​​​‌‍for $250 could not stand, or any other verdict for the plaintiff, if the second question was аnswered in the affirmative,— a course wholly subversive of the ends and purposes for which special verdicts and special questions in connection with general verdicts are authorized. The case of Chopin v. Badger Paper Co. 83 Wis. 192, is in these respects in accord with the previous decision. In Reed v. Madison, 85 Wis. 679, it was pointed out that the instructions in that case did not “ interfere with the proper consideration and determination of each question submitted, independently of all others,”" and, while it holds that a general statement of the law in such ‍​‌‌​‌‌​‌‌​‌​‌‌​‌​‌​​‌​‌‌​​​​‌​​‌​​‌​‌​‌‌‌‌​​​​​‌‍cases in connection with the particular questions would not be erroneous, the case affords no support for the course pursued in the present instance, which would, we think, be injurious rather than helpful in thе administration of justice.

For the errors pointed out, the judgment of the circuit court must be reversed.

By the Goxvrt.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.