Darcey v. Farmers' Lumber Co.

| Wis. | Dec 17, 1895

PiNNET, J.

The verdict in this case is so inconsistent and uncertain upon essential points that no judgment can be given upon it. It is useless to speculate in respect to’the intention of the jury, or how they arrived at their conclusions, in view of the instructions of the court which are before us. We can 'regard the verdict in no other light than as a formulation of facts found upon matters within the issue. The second and third findings clearly impute to the defendant negligence in keeping the saw upon which the plaintiff was injured in the position and condition it was at the time of the injury, which was the direct and proximate cause of such injury. The first and fourth findings show that the plaintiff was guilty of contributory negligence, or assumed the risk of the consequences of the negligence imputed to the defendant. Had there been no other findings, it would be clear that judgment should have been given for the defendant ; for up to this point the findings are clear, direct, and consistent. The fifth finding is in direct contradiction of the second as well as the fourth, for it is that “ the injury which the plaintiff received was the result of an accident oc-cwrri/ng without t7ie wa/nt of ordina/ry care of either ¡pcurty.” What the jury intended by these contradictory findings, we are unable to say. These inconsistencies render the verdict uncertain and insufficient.

The circuit court, in its order granting a new. trial, after stating the manner in Avhich the issue had been submitted, arrived at the conclusion that the answers to the questions submitted “ clearly showed that the jury failed, to comprehend the situation; ” that it was “ impossible to say from the verdict just what idea thé jury had, or just what amount of speculation they may have entered into, to arrive at the result they did; ” and that it was “ perfectly evident that they failed to pass upon the issue understandingly.” The circuit court therefore held that there should be a new trial. In this view we entirely concur. We cannot indulge in the presumption that the accident mentioned in the fifth finding related to any matter independent of the contact of the plaintiff with the saw and the means by which such contact was caused. We must intend that it related to the issue and the question of the defendant’s liability for the injury the plaintiff had received. A verdict must be reasonably certain,— not inconsistent or contradictory in its provisions. 38 Am. & Eng. Ency. of Law, 262; McGowan v. C. & N. W. R. Co., ante, p. 147. The plaintiff was entitled to such a verdict upon the facts constituting his cause of action.

The contention of the defendant’s counsel that the verdict with, as well as without, the fifth finding, is in favor of the defendant, does not meet the difficulty; for the fifth finding cannot be rejected, and it is inconsistent with the second and third findings, which impute negligence to the defendant as the direct and proximate cause of the plaintiff’s injury, and at the same time exculpates the plaintiff from the charge of contributory negligence or the assumption of risk imputed to him by the first and fourth findings. This left the plaintiff’s right to recover to depend upon whether the defendant was or was not guilty of the negligence imputed to it, in respect to which the verdict, as it stands, is fatally inconsistent and uncertain. Where a verdict is so defective that no judgment can be given on it, the result is that there has been a mistrial and that a new trial must be had.

For these reasons we hold that the order of the circuit court setting aside the verdict and granting a new trial is correct.

By the Oourt.— The order of the circuit court is affirmed.