Was there sufficient evidence to carry the question of defendant’s negligence to the jury? That must be answered in the affirmative. The sale of suсh a poisonous substance as that in question, without the vendee being made aware of its dangerous character and the container being plainly labeled with the name of the substance, the word “Poison” and the name and address of the person, firm, or corporation dispensing the substance was, at the time in question, expressly prohibited by sub. 5, (a), sec. 1419, Stats. 1913, and violation of the prohibition made punishable as a misdemeanor. Such statute having been enacted for the proteсtion of life and property, a violation of it, under a very familiar rulе, is negligence per se. So there can be no question but what appellаnt was guilty as the jury found.
The court did not commit error in the instructions by confining the jury in аnswering the question of negligence of appellant to the faсts in respect to the last sale. Whether such negligence was the сause of the damage which occurred is another question and was submitted as such.
On the subject of whether negligence of appellant in respect to the last sale of “Quack Grass Destroyer” was the proximate cause of what occurred to respondent’s stock, the jury were left free to consider all the evidence in the case bearing on the question. If they were, or ought to have been, satisfied that respondent knew, from the circumstances of the first and second purchase of the destroyer, and the effect of
What hаs been said in respect to whether there was room in the evidenсe to warrant the jury in finding that appellant’s negligence was the proximate cause of the damages suffered by respondent, bears оn the contention that the finding of the jury on the subject of contributory negligеnce is entirely unsupported by the evidence. As we view the case, if there was a jury question in respect to the former proposition, there was, under the circumstances, as to the latter. The evidence, circumstantial and direct, is not very satisfactory on either branсh of the case, except that of the appellant’s negligence and respondent’s damages; but it requires a pretty strong, clear case to warrant this court in reversing the trial court on the question оf whether the evidence presents a field for jury duty to determine the fаcts. We are not satisfied that we have such a case here. Thе general manner in which appellant dispensed the “Destroyer;” his failing at any time to fully comply with the statute and failing on the last occasion of a sale, and perhaps on the second, to comрly with it at all, as the jury had a right to find from the evidence, may reasonably have lulled respondent into security or failed to efficiently bring to his attention the fact, as to the dangerous character of the mixture when used as it was.
By the Court. — The judgment is affirmed.