Although the defendants-respondents (city of Janesville and Sorenson) in their motions after verdict moved the court to change the verdict answer concerning Sorenson’s negligence from “yes” to “no,” and in their brief herein have made a passing reference to his negligence, the major thrust of both briefs is to the question of causation. The plaintiffs-appellants con
From our examination of the entire record we feel compelled to consider whether Sorenson was negligent.
We are mindful of the often stated rule that if there is any credible evidence under any reasonable view or any reasonable inferences derived therefrom that support a finding of fact by the jury that neither trial court nor this court should change that answer. Conversely it can be said if there is no such evidence either court can change the answer as a matter of law. 3
In addition to the definition of negligence or failure to exercise ordinary care commonly used in jury cases, 4 the trial court instructed the jury as to the duties of Sorenson as follows:
“I will now instruct you with regard to the duties of a teacher; and this refers to Question 1, inquiring about whether Ted Sorenson was negligent. You are instructed that a teacher occupies a position in relation to his pupils comparable to that of a parent to children. He has the duty to instruct and warn pupils in his custody of any dangers which he knows or in the exercise of ordinary care ought to know are present in the gymnasium; and to instruct them in methods which will protect them from these dangers, whether the danger arises from equipment, devices, machines, or other causes. A failure to warn students of such danger or to instruct them in the means of avoiding such danger is negligence. In arriving at your determination as to whether or not the defendant Ted Sorenson exercised ordinary care you may weigh and consider the age, intelligence, and experience which he knew or ought to have known that the plaintiff and other students in theclass possessed. You may further weigh and consider the responsibilities which have been placed upon the defendant Ted Sorenson by his employment, such as the curriculum he was required to carry out, the daily schedule which was imposed upon him, the number of pupils assigned to him in the class, the size and arrangement of the gymnasium, and the equipment, devices, and other objects therein. If you become satisfied by the greater weight of the credible evidence to a reasonable certainty that the defendant failed to exercise that degree of supervision, instruction, and care which an ordinarily prudent physical education teacher would have maintained over the pupils or furnished to the pupils, then you will answer the question yes. If you are not so satisfied, you will answer the question no.”
These instructions were not objected to at the trial nor are they challenged on appeal. We believe they fully and fairly advise the jury as to Sorenson’s duties toward the plaintiff Terry consistent with the evidence in the case.
Although the complaint has additional allegations of negligence on the part of Sorenson, they find no support in the evidence; the basic claim of the plaintiffs is that Sorenson’s negligence consisted of his failure to properly instruct and supervise his students.
Plaintiffs maintain that “. . . such negligence culminated in the most glaring item of negligence in the case, to-wit, defendant’s failure to provide a spotter for the plaintiff, Terry Lueck, ... so as to prevent his injury.” We do not believe the evidence supports this contention. Plaintiffs seek to have the court charge Sorenson with an unreasonably high standard of care. That is, notwithstanding the present duty and standard of care imposed by law, Sorenson should have the additional duty to make sure every student who performs on any gymnastic apparatus while in class has a designated and specifically assigned spotter to spot, assist and prevent the possible fall of the performer at any time when working on an activity therein. To. support this propo
“My opinion is that for the general teaching of physical education, which would include all areas, it more than likely would be adequate; but when you’re specifically involved with apparatus and particularly with beginners, I would say the overall supervision could have been more wisely handled.”
This is the whole point — Mr. Sorenson’s supervision of the class that day was “adequate.” It would be impossible to watch every student all of the time during the class period. De Carlo never said Sorenson did not comply with the standards that a reasonable and prudent teacher would follow in teaching gymnastics. In fact, the word “adequate” would allow only one reasonable inference. That is, Sorenson did comply with the required standard of care. Whether De Carlo would have personally handled it “more wisely” is not the test. What De Carlo would do and what the standard of care requires are two different things. The standard is what determines one’s negligence and not what others may have personally done. A teacher should only be subjected to liability by the standards of care imposed by law and nothing more. Further, De Carlo admitted on cross-examination that not all of the experts in this field agree with his philosophy or opinion with respect to how a gymnastic course should be supervised and run. Lastly, when De Carlo was asked whether a spotter, to a reasonable degree of certainty, would have prevented the accident, De Carlo said:
“Yes, well very hypothetical, but in my opinion he could have prevented that accident, yes.”
Needless to say, an accident that “could have” been prevented is only a mere possibility and is different from saying it “would have” been prevented to a reasonable certainty.
Without restating the evidence, it is our opinion there is no credible evidence nor reasonable inferences that could be drawn from the evidence that will sustain a finding that either the municipality or its employee Sorenson failed to use ordinary care in the furnishing of adequate equipment or in the instruction, supervision and assistance given to the injured plaintiff, Terry, before and at the time of his fall and injury. The plaintiffs have failed to meet their burden of proof so as to establish negligence on the part of the defendants. The motion to change the answer from “yes” to “no” in the question inquiring as to the negligence of Sorenson should have been granted.
When it appears that the plaintiffs have not established negligence on the part of the defendant, the rest of the verdict becomes, in effect, surplusage. However, even if we assume negligence on the part of Sorenson had been established, we agree with the trial court wherein it concluded the jury finding that any negligence on the part of Sorenson was not a cause of the accident must be sustained.
By the Court. — Judgment affirmed.