126 Wis. 412 | Wis. | 1905
Complaint is made of instruction upon the same issue, that the jury should consider whether “the plaintiff knew or ought to have known and comprehended the risk and dangers.” The excepted portion of the instruction, standing alone,'might be objectionable upon the grounds discussed in Dehsoy v. M. E. R. & L. Co. 110 Wis. 412, 416, 85 N. W. 973, as allowing
The charge on the subject of contributory negligence is further complained of generally, because it did not in terms inform the jury that negligence on plaintiff’s part which directly contributed to the injury must have been the proximate cause thereof, with a statement of all the elements pertaining to proximate cause. We do not think it obnoxious to this objection. It required for an affirmative answer that his negligence, if any, must have “directly contributed” to his injury; but the rest of the same sentence required also that the injury must have been the natural and probable result and that the situation must have been such that an ordinarily prudent person would have anticipated and appreciated the danger of such an accident. This instruction was at least favorable enough to the appellant. If not necessary that his negligence should have contributed “directly,” that requirement could not prejudice him; for all the elements of proximate cause were re■quired to be found, and this in addition.
In this immediate connection we may consider the contention that the findings that defendant’s negligence was the -proximate cause of the injury and that plaintiff’s negligence -proximately contributed are so inconsistent that they cannot ■stand together. This would, indeed, be novel doctrine in this ■state, where the law has been declared from the earliest days 'that, although the defendant’s negligence be the proximate cause of an injury, yet plaintiff cannot recover if his own negligence contributed thereto. Counsel’s contention is, in effect, that, if the first fact be found, the latter cannot exist — a proposition in conflict with too many decisions to cite. One will
A still further complaint is that the court did not instruct the jury that, even if plaintiff were guilty of negligence in coiling the wire and hanging it in a place dangerous to those using the looking-glass, still the defendant would be hable if, after knowledge of such negligence, it might, by the exercise •of ordinary care, have averted the injury. This is the doc
We find no prejudicial error necessitating reversal.
By the Gourt. — Judgment affirmed.