Harper v. Holcomb

146 Wis. 183 | Wis. | 1911

MaRshall, J.

Several assignments of error, argued at considerable length by counsel for appellant, as we view the case, are not very material. However, we will refer to them briefly.

Evidence was permitted of experiments made some time after the occurrence complained of for the purpose of showing appellant might readily have distinguished respondent from a deer had he paid reasonable attention to the matter. Such evidence was competent, if the conditions were so far similar to those existing at the time and place of the injury as to render the result of the experiments of any substantial use in determining the question of whether appellant used due care. So the objection raised only a question of competency for decision by the trial court, tested as indicated. A determination of such a question is not disturb able on review unless manifestly wrong. Emery v. State, 101 Wis. 627, 647, 78 N. W. 145. No such plain error appears at this point.

Evidence was permitted of conversations with appellant as to duration of the treatment for respondent’s injury, and likelihood of violence to appellant because of his act. No prejudicial error is perceived in respect thereto.

Complaint is made because of the admission of evidence relating to the financial condition of respondent. No reference is made to the place where any such evidence can be found either in the record or in the printed case. Matters so imperfectly brought to the attention of the court are not ordinarily considered on appeal. They are therefore passed in this instance without further notice than this brief mention.

The next complaint is as to exclusion of answers to questions given on cross-examination regarding customary precautions to avoid danger such as that which led to the injury in question. The interrogatory was propounded to respondent as to whether it was not customary to wear red clothing besides a cap. The answer was in the negative. It was stricken out on objection as not being legitimate cross-examination. The ruling was proper as respondent had not been interrogated in chief on the subject. It was not prejudicial in any event, because respondent wore a red coat or frock in addition to his cap. If there were such a custom it was substantially complied with. If there were not, respondent used greater precaution than was usual. i

Testimony was excluded tending to show that respondent made his appearance quicker than was reasonably to be expected. The idea of counsel at this point seems to have been that if, when appellant saw the object which he mistook for a deer, he did not have reasonable ground to expect respondent had been long enough absent to return, there was, necessarily, no culpable want of care in shooting as he did. That is obviously wrong.

It is a matter of common knowledge that, in the deer-hunting season, many persons are liable to be in the timber in the region where the occurrence took place, rendering it incumbent, on a person circumstanced as appellant was, to use care commensurate with the danger not to shoot at an object, seen suddenly partly obscured by the undergrowth, without first waiting for such a view as to enable such person to not mistake a human being for a deer.

Let it be conceded for the case that respondent returned unexpectedly, and that appellant was not culpably negligent in thinking that what he saw was not his companion, still there was no excuse for the shooting if he had reasonable ground to expect any human being might, within reasonable probabilities, be in the vicinity where he saw the object, and yet did not hesitate to shoot thereat till he could see it sufficiently to tell whether it was a deer or a man. He confessed that he did not deliberately, at least, look for unmistakable -evidence in that regard, such as the upper part of the body, including the head. According to his own claim, the mere momentary glimpse of the object from near the ground up ■about two or three feet, disclosing only, apparently, the forelegs and shoulders of the supposed deer, did not give any opportunity to observe whether the object had a red cap, or ■observe whether it had the characteristics of what he was waiting for. So whether he had reasonable ground to expect his •companion had been absent a sufficient length of time to return does not appear to be efficiently material.

Other rulings on evidence referred to in the brief of counsel for appellant, do not appear to merit attention, especially in view of what has been said and the obvious carelessness of ■appellant, as we view the matter.

The court after having correctly defined the term “ordinary ■care” proceeded to elucidate the matter with reference to the case in hand in this way:

“Firearms are extraordinarily dangerous, and a person who handles such weapons is bound to use extraordinary care to prevent injury to others.”

“The defendant Holcomb owed a duty to his guide, Harper, under the circumstances of this ease, which required him to exercise the highest degree of care and caution before shooting, in order to distinguish whether the object at which he shot was an animal or whether it was Harper ”

“If the circumstances were such as to make it doubtful, however slight such doubt might be, he would have no right to shoot but would be guilty of a want of ordinary care in so doing.”

The quoted language demonstrates that, unless a trial judge is well grounded in the philosophy, so to speak, of a rule of law and can safely resort to an original method of explaining it, and use words in such a way as to accurately impress the nature of the rule, as applied to a given state of facts, upon the minds of others, he is quite as likely to enter the region of danger in indulging in a new way of elucidation and application, as in a new way of stating tbe rule itself which, has many times led to serious difficulties.

It is quite evident to ns that the circuit judge merely intended to instruct the jury that, on account of the dangers incident to the business appellant was engaged in, very great care was required in order to come up to the standard of ordinary care, — such care as is ordinarily exercised by the great mass of mankind under the same or similar circumstances. But we must say the' use of the words indulged in for that purpose does not meet with onr approval. It may be the jury .got the idea which the judge, in the faulty way, endeavored to convey, but that is not free from doubt. If they got the correct idea they did so by taking the judge at what he meant instead of giving to words their literal meaning. That is the jury were left to gather the correct thought by construction. That is an unsafe position to put a jury in. They should not be left to contend with any difficulty arising from obscurity of meaning of language used to instruct them.

True, what would be ordinary care under some circumstances would not be under others. That was very accurately explained here in the early case of Wheeler v. Westport, 30 Wis. 392. As the danger increases and the seriousness of injuries liable to occur from failure to avoid creating, or avoid meeting such danger, increases the quantum of care should increase and, as matter of common knowledge, with the great mass of mankind does increase. But while that is true there is, in circumstances of great danger, the same as in those of little peril, the three well known degrees of care. To say in •either situation that one must exercise the very highest degree, in order to be free from failure to exercise ordinary care, would be palpably wrong. Where very much, as where very little, care is required there is the medium denominated ordinary care. When the trial judge said that appellant was required to “exercise the highest degree of care and caution,” taking the language by itself and literally, he obviously left no room for a quantum of care greater tban tbat of ordinary care. True, great care was required of appellant, but only because, ordinarily, sucb care is exercised, or must be presumed to be exercised, by tbe great mass of mankind under tbe same or similar circumstances. Tbe use of tbe term “highest degree” is tbe crowning fault of tbe matter.

Another fault -in tbe court’s language above discussed may well be given a passing notice. The idea conveyed was tbat it was tbe duty of appellant to use great care in respect to determining whether the object be saw and which tempted him to shoot was “an animal or whether it was Harper” — as if in bis watching for deer be was required only to be careful not to mistake Harper for one, — as if Hrn’per was tbe only human being appellant bad any reasonable ground to expect might come within tbe range of bis gun. Tbe court took too narrow a view of tbe situation by far. Tbe jury might well have been told tbat, under tbe circumstances in which appellant was placed, be was required to use great care in order to come up to tbe standard of ordinary care, not to shoot at a human being, mistaking sucb being for a deer.

Counsel for respondent refer to some sucb ambiguous and improper language as used here having been approved in foreign jurisdictions. Tbat does not persuade us at all to depart from the plain, accurate, and only safe statement of tbe proper degree of care requisite to freedom from actionable negligence or fatal contributory negligence, which has uniformly been approved by this court and by most other courts which have dealt with tbe matter intelligently and with due consideration.

Notwithstanding tbe foregoing, it is considered tbat tbe faulty instruction was not prejudicial because, from tbe undisputed situation, — from tbe evidence of appellant himself,— be was negligent as a matter of law in shooting as be did. Knowing, as we must, tbat in tbe bunting season for deer tbe region which persons visit in search thereof is commonly traversed by so many persons that one is liable to make bis appearance at any time during tbe ordinary hours for bunting, and knowing, as we must, tbe ordinary regard for safety of human life, we must assume that a hubter, as a rule, upon seeing an animated object within range of his gun looks carefully to see the unmistakable distinguishing characteristics between a human being and a deer or other animal before shooting at it. To shoot upon merely seeing through the underbrush a “flash,” then apparently two supports, about the length of a man’s limbs, for the -body or something, and a quick movement- — -not waiting to observe the upper part of the body, particularly the head- — -as appellant confessed was the course he pursued, might naturally and within probabilities lead to just such a distressing occurrence as happened in the instance under consideration. To hold appellant guilty of, merely, a want of ordinary care is putting the matter quite mildly. If he was charged with that reckless disregard which enters the region of gross negligence and creates civil liability regardless of contributory negligence it could not be avoided without difficulty. If the court upon the trial of-this case had taken the question of appellant’s negligence from the jury it is not perceived how the ruling could be disturbed. It may be that would have been done had the idea not been so much dwelt upon during the trial both by counsel on both sides and the court, that it was only Harper,, appellant was bound to look out for, that if he had in the exercise of ordinary care good reason to think that Hamper had not returned he was justified in shooting upon obtaining a mere glimpse and then a little better view of something which he thought was the forelegs and breast of a deer. He said substantially as indicated. I just saw a flash and turned around and dropped my gun — that is pointed his gun at the object causing the flash in readiness to shoot. I hesitated. I was not, you might say, real sure whether the object was a man or a deer. The object was stationary for an instant. Then it kind of jumped. It looked to me like a deer. I could see from it's shoulder down. It was in the direction Harper was to come from. It looked like the forepart of a deer and I fired. We consider that, as a matter of law, a confession of culpable carelessness. One would, naturally, think that a reasonably careful man, circumstanced as appellant was, would reserve his fire till he could observe the trunk of the object attracting his attention, and probably the head, — not take the chance of what appeared to be the shoulders and forelegs of a deer, being in fact the lower part of the person of a human being.

Oomplaint is made because the court refused to submit in the special verdict questions covering, singly, matters set forth in the answer claimed to evince contributory negligence. The statutory right to a special verdict is limited to that of having the essential facts, not mere evidence thereof, in issue, so far as left in controversy on the trial submitted to the jury by questions, each involving but one of such facts and permitting of a direct answer. Baxter v. C. & N. W. R. Co. 104 Wis. 301, 312, 80 N. W. 644. What was said in that case was but a reiteration of what had been frequently said before and has been said many times since. We repeat again:

“A special verdict” “is a finding upon all the material issues of fact raised by the pleadings. A failure to distinguish between such facts and the numerous evidentiary circumstances which may be the subjects of controversy on the evidence and are relied upon to establish the ultimate facts upon which the case turns, often leads to unjust criticism of a special verdict. A conclusion is not one of law because it is reached by a process of reasoning from many primary circumstances. While such circumstances may be in dispute, the real question is, Do they'lead with reasonable certainty to, and establish, the fact alleged by the pleading upon the one side and denied by the pleading upon the other ? If the subject of the allegation in the complaint be one of law, or of mere evidence, it has no proper place in the pleading, and hence no necessary place in the special verdict. By the complaint, certain facts are alleged to exist constituting the plaintiffs cause of action and warranting tbe remedy sought. Those facts, if put in issue by the answer, and controverted on the evidence, in case of a special verdict, must appear to exist thereby [subject to the statute supplementing the verdict], or the conclusion of law must be against the plaintiff. The object of a special verdict is solely to obtain a decision of issues of fact raised by the pleadings, not to decide disputes between witnesses as to minor facts, even if such minor facts are essential to and establish, by inference or otherwise, the main fact.”

Thus, it will be seen, mere pleaded evidentiary matter or conclusions of law need not be covered by special questions. The real test of what is required for a special verdict is the material issues of fact found in the pleadings, each of which is a subject of reasonable controversy on the evidence, to be covered by a question. If that simple test were uniformly applied there would be little or no trouble about the form of a special verdict and there would be less criticism and impatience with a branch of the Code well designed to aid in the administration of justice.

In the light of the foregoing the questions requested by appellant were sufficiently covered by the general interrogatory as to whether plaintiff was guilty of a want of ordinary care proximately contributing to his injury. That was the fact in issue. It was not necessary for respondent to specially plead freedom from such negligence. True, if the facts pleaded by him had disclosed such negligence, the complaint would have been open to a demurrer for insufficiency, but in the absence of some efficient showing to the contrary ordinary care on his part was to be presumed. So, also, it was not necessary for defendant to specially plead contributory negligence on plaintiff’s part. In the very nature of the case, due care on plaintiff’s part in such an action is put in issue by a general denial whether specially pleaded in the complaint or not. This court has many times so held. Cunningham v. Lyness, 22 Wis. 245, 250; Potter v. C. & N. W. R. Co. 20 Wis. 533; Jones v. S. & F. du L. R. Co. 42 Wis. 306, 310; McQuade v. C. & N. W. R. Co. 68 Wis. 616, 32 N. W. 633; Andrews v. C., M. & St. P. R. Co. 96 Wis. 348, 361, 71 N. W. 372.

The rule stated was made very emphatic in McQuade v. C. & N. W. R. Co., supra, the court bolding that under some circumstances the special plea may be stricken out without being prejudicial because it is entirely unnecessary.

Thus it will be seen contributory negligence has been uniformly treated as a single fact, and in issue in an action grounded on- negligence whether specially pleaded or not. Hence the practice, in general, under the special-verdict statute has been to submit the matter as involving a single issue. That has been followed so long that it may well be considered, in connection with the settled practice respecting the manner of raising the issue by pleadings, as having become a part of tjie special-verdict statute itself.

The question is raised as to whether the evidence did not establish contributory negligence ás a matter of law. We mention the matter to show that it has not been overlooked. However, in our judgment, the question was so plainly one for the jury, under all the circumstances, that it is not thought best to prolong this opinion for the purpose of discussing the matter.

Some other questions are suggested for consideration but they do not appeal to us as requiring mention in detail or discussion. It is considered that no harmful error is disclosed by the record and that the judgment must be affirmed.

By the Court. — So ordered.