Ohlweiler v. Lohmann

88 Wis. 75 | Wis. | 1894

Oassodatj J.

It is conceded that the mare was hired of the defendants by the plaintiff to drive, and that while he was driving her she kicked and badly injured him. A recovery of damages is sought on the ground that at the time of letting the mare the defendants negligently failed to fully and truly inform the plaintiff as to her known vicious habits. The simple issue thus presented was complicated to a considerable extent by submitting to the jury ten several questions respecting the same. Five of these relate to the habits of the mare when being driven with the lines, or one of them, under her tail. Four of them relate to her habits when driven without a kicking strap, and whether the- defendants were negligent in allowing her to be so driven. Two of them relate to the negligence of the respective parties in regard to the location of the seat. These were all matters of evidence proper to be considered in the determination of the case. But such verdict was never designed to submit to the jury undisputed questions of fact, nor to elicit from them a mere abstract of the evidence. Montreal River L. Co. v. Mihills, 80 Wis. 551. The statute requires that such questions shall relate “ only to material .issues of fact.” Sec. 2858, R. S. This would seem to limit such questions to such facts as are controverted and put in issue 'by the pleadings, or, at most, to such as might properly have been put in issue by the pleadings, i. e. issuable facts in contradistinction to mere evidence. These views are in accord with the repeated decisions of this court. Heddles v. C. & N. W. R. Co. 74 Wis. 258. .Some portions of the special verdict are repugnant to the rules mentioned. So the questions which the defendants, requested to have submitted were, to some extent, objectionable. Nothing here said is intended to restrict the proper exercise of the discretionary power of the trial court in the formation of such verdicts, but only to indicate the propriety of simplifying such issues, and thus avoiding errors which in a close case may become material, and hence ground for reversal. Ibid.

The jury were not required to answer the second question submitted unless they answered the first question in the negative, but they answered the first question in the affirmative, and such answer is given in the foregoing statement. The two questions are, to some extent, counterparts of each other.¹ They submitted to the jury the claims of the respective parties as- to the information given to the plaintiff by the defendants as to the habits of the mare at the time of the letting. The court, in charging the jury, considered the two questions together, and in effect told the jury that the burden of proof was upon the plaintiff as to the first question, and upon the defendants as to the second, and then, among other things, said: “ But, inasmuch as there are but two versions of the facts here, — the burden of proof being upon the plaintiff as to one, and upon the defendants as to the other,— it is immaterial, or very nearly immaterial, how the burden of proof lies.” This is all there was said in the charge about the burden of proof, except that the jury were directed to answer the third question submitted “ according to the weight of the evidence,” and yet there were seven other questions submitted to the jury respecting the alleged negligence of the defendants. The real question for determination was whether the defendants were negligent, as indicated, in the letting of the mare; and in a case like this the burden of proving that they were so negligent is upon the plaintiff, and does not shift to the defendant during the trial. Atkinson v. Goodrich Transp. Co. 69 Wis. 5. On the contrary, the burden of proving contributory negligence, when not disclosed by the testimony on the part of the plaintiff, is upon the defendant. Hoye v. C. & N. W. R. Co. 67 Wis. 15. These broad distinctions should not be lost sight of in the charge or the verdict; and yet in the charge and the verdict in the case at bar the subject of negligence and contributory negligence are commingled together, and repeatedly made to alternate with each other, thus making the error -in the charge as to the burden of proof more effectual.

The court charged the jury, upon the ninth question submitted, to the effect that, unless the jury found that the defendants were clearly satisfied that the mare was safe without a kicking strap, they were negligent in letting her to be driven in a single harness without one; that, if they found that there was still reason to doubt her safety with•out a kicking strap, then they ought to find that it was negligent to let her without one. This was, in effect, saying, as a matter of law, upon the facts stated, that the failure to furnish a kicking strap was negligence for which •the defendants were necessarily liable. This, as we think, was a clear encroachment upon the province of the. jury, as indicated when the case was here upon the former appeal. 82 Wis. 198; Kaples v. Orth, 61 Wis. 538.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial. •