95 Wis. 482 | Wis. | 1897
When the evidence was all in, the defendant moved for the direction of a verdict for the defendant, on the ground that the testimony was insufficient to establish the defendant’s liability. The motion was denied; and the denial is alleged for error. On the former appeal, and on substantially the same testimony, this court considered the evidence sufficient to require the submission of the case to the jury. No reason is perceived why that decision is not to be deemed res adjudieata on this appeal. So it could be no error to deny the request.
The defendant also requested the court to instruct the jury that no statute law in this state required the defendant to cover or guard the set screw on which the plaintiff was
There being evidence sufficient to take-the case to the jury, the judgment must be sustained, unless it shall appear that in some important respect the case was not fairly tried and fairly submitted to the jury. The defendant requested eighteen special instructions to be given to the jury, all of which were refused. The refusal to give these proposed instructions, and the giving of some which were given, are the principal grounds of error alleged. These proposed instructions seem to be, in the main, correct, as propositions of law, and applicable to the facts of the case. Those which were correct should have been given as asked, and without modification. R. S. sec. 2853. The refusal to so give them is error, unless they were substantially given in the general charge.
The action goes on negligence. The defendant was entitled to have the jury correctly instructed on the general principles of the doctrine of negligence, and upon the law as applied to the particular negligence claimed. The particular negligence claimed was the failure of the defendant to furnish the plaintiff a safe place in which to do his work. .The place was claimed to be unsafe by reason of the proximity of uncovered machinery. The defendant was entitled to an instruction which should inform the jury of the extent and limit of the defendant’s duty to the plaintiff in respect to the safety of the place where his work was to be performed, and the rule of negligence in relation to that situation. The defendant asked this instruction on that point: “ The court instructs you that if the defendant furnished a place which was as safe and free from danger as other persons of or
No doubt the test of negligence is the presence or absence of that degree of care which ordinarily prudent per
On the subject of what amount of evidence was necessary to justify a verdict for the plaintiff, the court, after saying
On the subject of the amount of damages which the plaintiff, if entitled, might recover, the court said: “If you find for the plaintiff, you will bring in such damages as will make him whole, in dollars, as far as possible.” It is impossible to know how this advice impressed the jury, or what effect it had upon the size of the verdict. It sounds, like an invitation to make free with the defendant’s goods. It seems to suggest that the jury should be influenced by no conservative idea of compensation, but that they should aim at something beyond,— dollars enough to make him whole. As if the defendant, be it never so rich, had enough to make him whole! Certainly, this instruction suggested, or might suggest, to the jury, an improper and exaggerated notion of what was due the plaintiff; for, although the defendant may have committed a fault, it is not, for that reason, an outlaw, nor beyond the care of the law. Society may still receive valuable service from it,, and so is interested
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.