Griffin v. Town of Willow

43 Wis. 509 | Wis. | 1878

Ryan, C. J.

The mere opinion of the respondent’s witnesses upon the safety of the highway was of course inadmissible. Kelley v. Fond du Lac, 31 Wis., 179. It must have been admitted by inadvertence. The learned counsel for the respondent is too good a lawyer to deny the error. He took the position, however, that the admission of the opinion of the witnesses is immaterial, because the great weight of direct evidence upon the condition of the highway must have led the jury to the same opinion. This court cannot say so. It was for the jury to determine the weight to he given to the testimony of the several witnesses; and there certainly was evidence upon the sufficiency of the highway to support a verdict either way. In such cases a jury may well rely upon the judgment of persons' of intelligence and standing. And it is dangerous in practice, as it is wrong in principle, to admit witnesses to testify to the very conclusions of fact which the jury is impaneled to find.

The learned judge of the court below refused, upon request of the appellants, to instruct the jury that slight negligence on the part of the plaintiffs would not defeat their right to recover. The proposition is undoubtedly correct: the well settled law of this court. Slight negligence is not slight want of ordinary care contributing to the injury, which would defeat an action for' negligence. “Slight, negligence is defined to he only an absence of that degree of care and vigilance which persons of extraordinary prudence and foresight are accustomed to use.” And such want of extraordinary care, on the part of the person injured, will not defeat an action for negligence. Dreher v. Fitchburg, 22 Wis., 675; Ward v. Railway Co., 29 id., 144; Hammond v. Mukwa, 40 id., 35. In ordinary circumstances, persons traveling upon public highways are held to the exercise of ordinary care only.

The learned counsel for the respondent agrees to this; but claims that a fair construction of the general charge sufficiently gives the rule to the jury, to render immaterial the refusal of the learned judge to give the specific instruction ashed. As the judgment must he reversed upon the other point, it is unnecessary to examine the charge to see whether it sustains this view. Rut because the learned judge refused to give a direct and positive, statement of the rule, as asked, it has been thought proper, to avoid all mistake about it, to reiterate it here.

By the Court.— The judgment is reversed, and the cause remanded to the court below for a new trial.