105 Wis. 146 | Wis. | 1899
Can error be successfully assigned on exceptions to' instructions if the evidence in the case be not preserved and made a part of the record by a bill of exceptions ? That question is met with at the threshold of our consideration of this appeal. To sustain the negative of the proposition it is suggested by respondent’s counsel that error is always presumed against in appellate administration, and error must be made to affirmatively and clearly appear, and that it at least may, reasonably, have influenced the final result, or be deemed harmless and the judgment be sustained. Such is the law according to the uniform decisions of this and other courts, and the statute as well. Sec. 2829, Stats.
The law regarding the degree of care which the defendant was in duty bound to exercise was of vital importance on the trial. Defendant was charged with liability for a breach of duty, and whether he was guilty or not, assuming that he was responsible for the fire, depended upon the degree of care which his duty, under, the circumstances, called for. In the absence of coi’rect instructions, manifestly the jury were quite liable to go astray and not respond the vital issue in the case intelligently or correctly. Thus, it is easily shown that instructions on the subject of ordinary care were material. We cannot assume that they were immaterial because the evidence may have been conclusive as to defendant’s negligence, for the fact that the issue was submitted to the jury overcomes the presumption against error and.raises a presumption that there was evidence from which an inference could reasonably have been drawn either way in regard to it, and which justified correct instructions as to the law applicable thereto. The materiality of the issue and the fact that it was submitted to the jury for determination satisfy all calls for affirmative showing of prejudicial error, if the instructions in regard to such issue were erroneous. Our attention is called by respondent’s counsel to Paine v. Smith, 32 Wis. 335, as authority to the point that instructions in no case will be considered in the absence of evidence, but it is really authority for the con
It is so manifest in this case that the error, which must work a reversal of the judgment, occurred from the practice of giving oral instructions, that it seems proper to suggest
By the Oowt.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.