123 Wis. 256 | Wis. | 1904
The assignments of error are very numerous, and we shall not treat each one separately, but 'shall endeavor to classify them, and treat each class sufficiently in detail to indicate the conclusions reached on all of the assignments separately.
The alleged errors in refusing to grant a nonsuit, and in. refusing to direct a verdict, and in refusing to direct judgment for the defendant notwithstanding the verdict, may all
As stated in the statement of facts, the .Julius Andrae & Sons Company was originally joined as defendant in this action on the ground that they were negligent in leaving the unused wire with no one to care for it in the public streets.
We have been unable to see any error in this; at least any error prejudicial to the appellant. It was competent for the father to settle his own individual claim for damages on account of his son’s disablement, and the fact that he does so does not affect tbe son’s separate claim. The evidence did not show that any money was paid to the plaintiff, or to any one on bis behalf, on account of his injury, or that any agreement of release, oral or written, was made by the plaintiff, or by any one on his behalf. The understanding that the present action was to be discontinued constituted no release.
Upon the direct examination of the appellant as a witness in his own behalf he stated that the telephone and electric light companies each had a man at the building as he was ’moving it, who took care of the wires in the street in the way of the building, and either raised them or cut them and put them back again afterwards. He was then asked whether that was the usual custom in moving houses, and also whether, in moving houses, he ever looked after such wires himself; and objections were sustained to both questions. It has not been easy for us to see how the evidence would have been material-in any event, but there are very satisfactory answers to the appellant’s contention of error on these rulings; As to the first question, the witness had not shown that he knew anything about a general trade custom, and he must show that before he can be heard to testify; and as to the second question, it was only directed to the individual custom of the appellant himself, and this was very clearly incompetent.
A witness named Zarbock, a lineman employed by the Wisconsin Telephone Company, was called as a witness, and testified to examining the wire and its fastenings after the accident, and on cross-examination was asked whether it was fastened to the insulator on the south side of National avenue in the usual way, and an affirmative answer was stricken out. We have been unable to see what substantial bearing this answer would have in the case, or how the striking of it out was in any way prejudicial. The presumption would be, in the absence of any evidence, that it was fastened in the usual way, and this is as far as the answer went.
The appellant testified that Mrs. Nagle was present when he hung the wire on the house, and was then asked whether
An electrical engineer employed by the Electric Railway .& Light Company was allowed, against objection, to answer .a number of questions as to the voltage carried by the electric light and trolley wires in Milwaukee, as to the effect of contact between wires, as to the insulation of wires and the absence of guard wires, and other facts tending to show the condition of the various wires in the vicinity at the time of the accident. We are not able to understand how it can be reasonably claimed that there was error in these rulings. The facts thus shown throw light on the general situation and the dangers which were present. Whether the defendant should be charged with knowledge of such dangers, or with negligence in not knowing of them, was a question for the jury.
One of the plaintiff’s witnesses who had been called to tes
We shall spend no further time upon rulings on evidence. While there are some other rulings which are complained of, there are none of them of sufficient importance-to justify derailed treatment.
The defendant asked that the following instruction he .given to the jury, and assigns error on the refusal to give it:
“I further instruct you, that if you are satisfied hy the evidence in this case that the acts of the defendant Julius Andrae ■& Sons Company in leaving the telephone wire in question suspended in the manner they did was the proximate cause, under the definition and instructions already given you on this subject, of the accident to the plaintiff, it is then your •duty to answer the question as to whether the acts of the defendant Ilahe were the proximate cause in the negative.
¡Another instruction of like tenor, except that it referred to ■the acts of the Milwaukee Electric Eailway & Light Company, was also asked and refused, and exception taken. It is probably sufficient to say with regard to these and several kindred instructions that they express simply the converse of a propo■sition fully given hy the court. The court very carefully defined proximate cause, and charged the jury, in effect, that, in order to find that the negligence of Rake was the proximate <3ause they must be satisfied of the necessary facts by a fair preponderance of the evidence; otherwise they must answer the question whether the acts of Rake were the proximate
Tbe court gave tbe following instruction:
“The defendant, William Ealte, in breaking, coiling, and banging tbe dead or uncharged wire on June 20, 1901, is presumed to have known that it was an electric wire, and to-have known and realized the dangerous properties of electricity, and that a higher degree of care was necessary when a thing on account of which an injury may be caused was a highly dangerous one, and that dead electric wires may be-enlivened or become charged with a current of electricity by coming in contact with a charged wire, and that in case any person touched or grasped such a wire it would, or might reasonably be expected to endanger the life or limbs of any person touching it.”
The appellant claims this instruction to be erroneous because it requires the exercise of more than ordinary care. We do not so understand it, nor do we think the jury could have so understood it. The court had already defined ordinary care as “such care as the mass or majority of mankind-exercise under the same or similar circumstances.” The sentence now under consideration is elliptical, in that it does-not in terms state with what the care required in handling-electric wires is to be compared; but we think.that none could mistake the idea intended, namely, the idea that greater care-is required in handling such agencies which may be charged with mysterious and sudden death than in handling ordinary substances, and this as we have seen is a correct statement of the law.
We have covered all of the assignments of error which seem-to us to be of- sufficient significance to justify special treatment. Wé have carefully examined the other points made by appellant, but have found no errors.
By the Court. — Judgment affirmed.