Miller v. Town of Casco

116 Wis. 510 | Wis. | 1903

WiNsnow, J.

The order setting aside the verdict and granting a new trial in this case was not an order made in the exercise of that general discretion which the trial court has on the subject. It was an order based solely on the legal conclusion that the special verdict was inconsistent and evasive. If this was a mistaken conclusion, then the order should be reversed. It cannot be sustained on the ground that it was an exercise of the court’s discretion, because that ground is negatived by the terms of the order itself. Mullen v. Fleinig, 68 Wis. 408, 32 N. W. 293. The simple question presented by the appeal, therefore, is whether the verdict is in fact inconsistent and évasive. While the question as to the form of the verdict is not necessarily involved, it seems proper to say that the verdict in the present case is entirely too long and complicated for so simple a case. It amounts to a cross-examination of the jury, and covers questions simply evidentiary in their character. The facts in the case were mostly undisputed, and the issues necessary to be submitted to the jury were few. Without intending to dictate the form of the questions which should have been submitted, it may be said that the material issues were substantially as follows: (1) Was the highway defective by reason of the placing of the sticks in the hole by the overseer of highways; or, in other words, was the appearance of the sticks such that horses of ordinary gentleness would naturally and probably be frightened thereby ? (2) Was the plaintiffs horse an ordinarily gentle horse for highway driving? (3) Was the horse frightened by the sticks, and did the plaintiffs injuries result from such fright? (4) Did the driver of the horse exercise ordinary care in his driving? (5) If not, did his want of ordinary care contribute to the happening of the accident? And (6) what is the amount of the plaintiffs damages ? A comparison of the questions suggested with the questions actually submitted to the jury will demonstrate the unnecessary length of the verdict. Passing, however, to the question whether the verdict as rendered is in fact inconsistent or evasive, we find ourselves unable to agree with the conclusion of the trial court. The essential facts found by the jury are that the highway was not defective; that the horse was ordinarily gentle; that it was, however, frightened by the sticks; and that the driver was not guilty of any contributory negligence. To these facts must be added the undisputed fact that the accident actually happened. Are these facts in any way necessarily inconsistent, or are the answers of the jury evasive? The trial judge filed an opinion when he decided the various motions, from which it appears that he deemed the verdict inconsistent because it acquitted both the town and the driver of negligence. In this opinion, while conceding that the inference of pure accident or misfortune might, perhaps, be drawn, from the verdict, he seems to conclude that, because neither party urged that theory, but the plaintiff urged negligence of the town as the cause, and the defendant urged the negligence of the driver as the cause, therefore a verdict finding that neither of these causes existed is inconsistent^ and cannot stand. This certainly does not follow. If the jury, by their answers, have found upon sufficient testimony that the occurrence was a pure accident, without negligence on either side, the defendant is entitled to the benefit of that conclusion. The negativing of negligence on one side does not, in such a case as this, necessarily involve the conclusion that there was negligence on the other side. Accidents for which no one can be held responsible frequently happen. Horses of ordinary gentleness, properly driven, frequently shy, and do damage, for no-perceptible or sufficient cause.

The trial judge seems also to have considered that the answer to question No. 13 of the verdict is inconsistent with the other answers of the verdict which find that the highway was reasonably safe for the use of travelers. This conclusion also-seems untenable. Question 13 is a hypothetical question purely. By it the jury were asked whether the town officers should have known of the existence of the hole, and repaired' it, so as to make the road safe, before the plaintiffs injury, if it was not then repaired so as to be safe. By answering-this question in the affirmative, the jury simply found that, upon the supposition that the road was not safe when plaintiff was injured, then it should have been repaired. They cannot be held to have found by this that the fact which was only supposed for the purpose of the question really existed. Logically, they should not have answered this question at all, because they had found as a fact that the road was safe, and they should have been instructed not to answer it if they found as. a fact that the road was safe.

In our judgment, tlie verdict tells a plain and consistent story of a pure accident, for which no one is liable, and the motion for judgment on the part of the defendant should have been granted.

By the Court. — Order reversed, and action remanded, with directions to enter judgment on the verdict for the defendant.