148 Wis. 655 | Wis. | 1912
Tbe. appeal presents tbe question of whether there was evidence tending to prove that appellant did not exercise ordinary care in respect to respondent and whether there was evidence tending to establish efficient want of ordinary care on respondent’s part.
Tbe two questions mentioned may well be answered without discussing, at length, tbe evidence. They depend upon
A reading of the statement of facts will be sufficient to show that this is not a case of single permissible inference as to either of the suggested propositions. The most attention was paid by counsel, particularly on the oral argument, to the fact that respondent did not proceed thoughtfully as to the condition of the surface over which he was traveling and as to his surroundings, instead of permitting his attention to be so fully diverted by the purpose of his trip. But, in the judgment of the court, it is not wholly unreasonable to conclude that he acted as prudently as the majority of mankind'would, ordinarily, under the same or similar circumstances,- — that it was not wholly unreasonable to assume that the average person on a dark night, absorbed in the thought of reaching quickly, and without being discovered, a person engaged in wrongdoing, — as one stealing coal on a dock, — thinking as he would be quite liable to that such wrongdoer upon apprehending imminent danger of being detected would flee, — would not, probably, carefully determine at each step the condition of his pathway or pay any particular attention thereto.
Without further discussion we may well close this case by saying that it is the opinion of the court that the record does not disclose any good ground for interference with the trial court’s refusal to disturb the verdict, as contrary to the evidence.
By the Court. — The judgment is affirined.