Dean v. Chicago & Northwestern Railway Co., 43 Wis. 305

Dean v. Chicago & Northwestern Railway Co.

43 Wis. 305 | Wis. | 1877

Lyon, J.

No error is assigned upon the instructions of the county judge on questions of negligence, and the verdict of the jury disposes of those questions adversely to the defendant. A reversal of the judgment is claimed on two grounds: 1. Because (as it is alleged) the judge gave conflicting instructions as to the rule of damages; and 2. Because he directed the jury, if they found for the plaintiff, to allow interest on the damages from the time the cow was injured. These are the only errors assigned on this appeal.

1. There is an apparent conflict between the two instructions which the court gave the jury. That given at the request of counsel for defendant is, substantially, that the measure of damages is the difference between the value of the cow before she was injured, and the sum which the plaintiff might have realized for her had he disposed of her to the best advantage after she was injured; while the other instruction is, that the measure of damages is the difference between such value and the sum the plaintiff actually realized.

Under the evidence we' think the conflict is only apparent — not real. It is manifest that when the plaintiff testified *309that the cow was worth $40 for beef, he referred to her value before she was injured. lie says “ she was worth $40 for beef at that time;” and speaking of her value for milking purposes, he also says that she was worth $50 at the time. The time referred to in both cases was doubtless a time immediately preceding the injury. There is no proof of her value for beef after she was injured, or that she was suitable for beef thereafter. In the absence of proof on the subject, we may be permitted to doubt whether the carcass of an animal bruised and broken as this was, is fit for human food, and especially so when the animal was a milch cow. Neither is there any evidence tending to show that the carcass was not worth as much after the cow was killed in the evening, as it would have been had she been killed immediately after she was injured; or that the plaintiff failed to dispose of it to the best advantage. The plaintiff testified that the cow was as good at night as in the morning — meaning, no doubt, that she was worth as much killed at night as she would have been had she been killed on the morning of the injury. There is no direct evidence to the contrary.

As the evidence stands, the jury must necessarily have found that the plaintiff disposed of the remains of his cow to the best advantage. Hence, under the instruction given on behalf of the defendant, they must necessarily have assessed the same damages that they would have assessed under the other instruction. Had either instruction' been omitted, the result must have been the same.

We leave this branch of the case with the remark that the rule of damages was laid down too favorably to the defendant; for the plaintiff was entitled to a reasonable allowance for his time and trouble in disposing of the remains of his cow, and should only have been charged with the net proceeds realized, or which might have been realized by him, after deducting such allowance.

2. In Chapman v. Railway Co., 26 Wis., 295, which was a *310case like this, a direction to the jury to allow interest from the commencement of the action, on the immediate damages suffered by the plaintiff, was upheld. We do not understand that the authority of that ruling has been shaken by any subsequent decision of this court. In the present case the direction was to compute interest on the immediate damages from the time the cow was killed. This may have been an unjustifiable extension of the rule of Chapman v. Railway Co. We do not say whether it is so or not. If it is so, it may be that the improper allowance of interest on an insignificant sum for the few months intermediate the injury and the commencement of the action presents a case for the application of the maxim, de minimis non curat lex. However that may be, we think no sufficient exception was taken to the instruction to enable us to review it on this appeal. The exception is to “ each and every part ” of the instruction. This is but a general exception to the whole instruction. To be available, it should have been specific; for it is well settled that a general exception to an instruction is insufficient if any portion of the instruction can be upheld. We have already seen that, under the evidence, the balance of the instruction is unobjectionable. Had the exception been specific, the attention of the learned county judge would have been directed by it to the alleged error, and probably he would have required the plaintiff to remit the excess of interest as a condition of denying the motion for a new trial. See Eldred v. Oconto Co., 33 Wis., 133, and cases cited. It may also be observed that the grounds assigned therefor in the motion for a new trial are equally general, and the exception to the order denying the motion does not aid the defective exception, as it did in Wells v. Perkins, ante, p. 160.

The insufficiency of the exception was not noticed on the argument of the cause; but it is disclosed in the record, and we cannot disregard it.

Finding no error in the record which the defendant can be *311beard to allege, we must affirm tbe judgment of tbe county-court.

By the Court. — Judgment affirmed.