Gallaway v. Massee

133 Wis. 638 | Wis. | 1907

SiebecKER, J.

It is claimed that the court should have-directed a verdict for the defendants because there is no evidence of the negligence charged and because the evidence does not show that the alleged negligence was the proximate cause of the injury. The evidence adduced tends to support the verdict sufficiently to warrant the inference of negligence and that it resulted in the damage claimed. The evidence was sharply in conflict upon these issues and thus presented an issue for the jury to determine whether or not defendants’ servant was negligent in the respects charged in the complaint and whether or not the damages alleged were the proximate result of the alleged negligence. The case was submitted to the jury under instructions from the court which fully informed them of the rules of law applicable to the case upon the issues raised and litigated as to the negligence charged and as to contributory negligence and as to the questions of proximate cause, damages, and the burden of proof. The instructions embody the rules of law applicable to the case and state them correctly upon each of the issues. The court, therefore, committed no error in refusing to instruct the jury in the language requested, and in rejecting instructions requested by the defendants which were not embraced in the instructions given.

The defendants moved to set aside the verdict upon the affidavit of one of the jurors to the effect that the damages actually agreed upon by the jury were arrived at through a gambling operation, by dividing the total sum of the amounts each juror determined to award by the number of jurors, and that the verdict, therefore, was not a verdict agreed upon by the jurors as required by law. The affidavit of this juror,, 'in effect, directly impeaches the verdict rendered by the jury. Snob an affidavit by a juror cannot be entertained by a court to set aside the verdict rendered. Wolfgram v. Schoepke, 123 Wis. 19, 100 N. W. 1054; Owen v. Portage Tel. Co. 126 Wis. 412, 105 N. W. 924; Butteris v. Mifflin & L. M. Co., ante, p. 343, 113 N. W. 642.

The exceptions to the rulings of the court rejecting opinion testimony are, not well taken. The matters involved in these questions were either within the common knowledge of the jurors, or of such remote bearing on the issues litigated that exclusion of the evidence could not operate to defendants’ prejudice. We find no reversible error in the record. •

By the Court. — Judgment affirmed.