36 Wis. 92 | Wis. | 1874
I. The defendant objected on the trial to the admission of any testimony under the complaint, for the alleged reason that the complaint fails to state facts sufficient to constitute a cause of action. We learn from the argument that this objection has reference to that portion of the complaint which attempts to set out the insufficiency of the highway where the plaintiff’s intestate (the original plaintiff) was injured. The averment in the complaint is, that “ there was a large stump in or near the middle of the main traveled track of said road,” against which the plaintiff’s wagon struck, and caused the injury complained of. The point of the objection is, that it is not stated “whether the stump was attached to the soil or detached therefrom, nor whether it had been there five minutes or five years.” One of the definitions of the word “stump” given by Webster, is : “The part of the tree or plant remaining in the earth after the stem or trunk is cut off; the stub.” This is its usual significa'nce, and we have no difficulty in assuming that the word is employed in the complaint in this sense. We think that the averment is sufficient, and that the complaint states a cause of action.
II. The circuit court admitted considerable testimony on the trial tending to show that Smeltzer (who for convenience will be called the plaintiff) was permanently injured. All such testimony was duly objected to by the counsel for the defendant, who stated, as the grounds of objection thereto, that “ it is not alleged in the complaint that he is permanently injured by reason of the injury he sustained in consequence of the alleged defect in the highway.” The averments of injury and of the extent thereof contained in the complaint, are as follows : “ that the plaintiff’s wagon struck the said stump, which threw the plaintiff down upon his wagon rack, by reason of which he was greatly injured; that by reason of said injury his life was and is greatly endangered ; that ever since that time he has suffered great bodily and mental pain ; that he will be permanently crippled and injured for life; that ever since the time afore
III. At the close of the plaintiff’s case the defendant moved for a nonsuit. It is claimed that the testimony introduced by the plaintiff shows, affirmatively that the highway was not defective or insufficient, and, if it was, that the plaintiff was guilty of negligence, or want of ordinary care, which contributed directly to cause the injury of which he complaims. If this claim be well founded — if the court could have properly held, as matter of law, either that the highway was sufficient, or that the plaintiff was guilty of such contributory negligence,— the plaintiff should have been nonsuited. The court could not have so held unless the uncontradicted testimony proved a state of facts from which the inference of the sufficiency of the highway, or of the existence of such contributory negligence, is indubitable. It becomes necessary, therefore, to examine the testimony bearing upon these questions.
1. The plaintiff’s testimony tends to prove that this highway was much traveled; that the stump which caused the injury was eight or ten inches high and six inches in diameter, and
It was the duty of the defendant town to keep the highway in a safe and convenient condition for public travel; and the mere statement of the facts in that behalf which the plaintiff’s testimony tended to prove, demonstrates that the court could not propei’ly hold, as matter of law, that the highway was in a safe condition. The question whether it was or was not in such condition was properly left to the determination of the jury, and any other disposition of it by the court would clearly have been erroneous.
2. As to the alleged contributory negligence of the plaintiff. The testimony tends to prove that the plaintiff was driving his team along the highway on a slow walk, having his boys in the wagon with him; that when the wheel of his wagon struck the stump and caused the injuries complained of, he was holding the reins with one hand, and with the other assisting his boys to a seat, and that in doing so his attention was diverted for a few moments from his team and from the highway upon which he was traveling. This is all there is in the plaintiff’s testimony tending to show that he is chargeable with contributory negligence. Allowing his attention to be thus diverted from his team and the highway, may have been negligence. Quite likely a jury might be justified in finding that it was. But we think it was not competent for the court thus to hold, as matter of law.
The general doctrine of the numerous cases cited by the learned counsel for the defendant, to the effect thht if it conclusively appears by the plaintiff’s showing that he was chargeable with a want of ordinary care which contributed proximately to the injury, or that the defendant was free from negligence, a nonsuit should be ordered, has been frequently asserted and applied by this court. It is believed, however, that none of the cases, at least none in this court, hold that a' non-suit is proper when the testimony leaves the question .of negligence in doubt. This is such a case.
IY. The charge of the learned circuit judge to the jury is a full, clear and accurate statement of the law of the case; and only a single exception was taken thereto. The court refused to give certain instructions proposed on behalf of defendant. Some of these were incorporated in the general charge, and the refusal to give them was of course merely formal. Those which were not included in the general charge, are as follows: • “ 1. There can be no recovery by the plaintiff in this ease, if-the jury believe from the evidence that the plaintiff was guilty ' of negligence (though it were slight), and such negligence contributed directly to the injury. 2. If the jury believe from the evidence that the plaintiff- was guilty of any negligence which contributed directly or proxirnately to produce'the injury, then '• and in that case the plaintiff cannot recover.”
The law is, that if the plaintiff was guilty of any want of ordinary care and prudence (however slight), which neglect contributed directly to produce the injury, he cannot recover. And so were the jury instructed, in substance and effect. It
The exception to the general charge is to a single sentence, in which the jury were told that the testimony on the part of the plaintiff tended to show that the plaintiff, when injured, was in the exercise of ordinary care and diligence. The remark is strictly true, and it was not error to make it to the jury. It is but the corollary of the ruling of the court denying the motion for a nonsuit. There it was necessarily held that the testimony did not show the want of such ordinary care and diligence, while this instruction is, that the testimony tends to show the exercise by the plaintiff of that degree of caution. Both the ruling and the instruction are correct.
V. The circuit court denied a motion for a new trial. It is alleged that the verdict is against the weight of evidence, and that the motion should have been granted for that reason. The granting or refusing of a new trial for the cause here assigned is largely in the discretion of the circuit court; and had the motion therefor been granted, it probably would not have been regarded as an abuse of discretion. But the rule is too well settled to be now disturbed, that where there is testimony to support the verdict, this court will not reverse an order denying a new trial, merely because we are of the opinion that the weight of evidence is against the verdict Van Doran v. Armstrong, 28 Wis., 236, and cases cited.
By the Court. — Judgment affirmed.