Mossrud v. Lee

163 Wis. 229 | Wis. | 1916

Maeshall, J.

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 such 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 protection of life and property, a violation of it, under a very familiar rule, is negligence per se. So there can be no question but what appellant was guilty as the jury found.

The court did not commit error in the instructions by confining the jury in answering the question of negligence of appellant to the facts in respect to the last sale. Whether such negligence was the cause 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 the mixture on quack grass, that it was poisonous to live stock, in case of their being permitted to eat grass which had been recently treated with it, then they might well have found in appellant’s favor on the second branch of the case. They were evidently not so satisfied. It may be they ought to have been. Certainly there are circumstances pointing very strongly that way and there is much force in the argument of counsel for appellant in respect to the matter; but it seems there was sufficient basis for a contrary view that we ought not to hold the trial court was clearly wrong in deciding that it was within the province of the jury to settle- the matter.

What has been said in respect to whether there was room in the evidence to warrant the jury in finding that appellant’s negligence was the proximate cause of the damages suffered by respondent, bears on the contention that the finding of the jury on the subject of contributory negligence 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 branch 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 of whether the evidence presents a field for jury duty to determine the facts. We are not satisfied that we have such a case here. The 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 comply 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.