138 Wis. 455 | Wis. | 1909
The complaint in this action contained the following allegation:
“And said Thomas Palmer, deceased, on the night of the 19th or early morning of the 20th of May, 1904, and while it was still dark, walked from the east side of said viaduct across the roadway for horses, with the intention of going upon the sidewalk upon the west side of said viaduct, and walked into the space or hole left where said sidewalk had been tom up, and fell to the ground some forty feet below and was killed.”
The answer denies that defendant neglected to cause proper barriers to be erected, denies that he failed to take suitable measures for the protection of persons walking upon said via
The answer further alleges “that the accident received by him [the decedent] and which caused his death was due to the carelessness or negligence of said plaintiff’s decedent himself contributing directly thereto.”
That these denials and averments of the answer do not put in issue the allegation of the complaint as to the time and manner in which the plaintiff’s decedent met his death seems too clear to admit of serious controversy. The contributory negligence of the decedent, and the lack of negligence on the part of the defendant, are well pleaded; but it is not denied that while it was dark on the night of Máy 19th, or the early morning of May 20th, the deceased walked from the east side of the viaduct across the roadway for horses, with the intention of going upon the sidewalk on the west side of the viaduct, and that in so doing he walked into a space or hole left by the removal of the old sidewalk and fell to the ground a distance of forty feet and was killed.
One of the errors principally relied upon was the refusal of the court to permit the defendant to so amend his answer as to put in issue the averments of the complaint as to the time and manner in which Thomas Palmer met his death. If the ruling of the trial court in this behalf was not an abuse of sound judicial discretion, then the errors assigned because of the admission of the testimony of the witness Grundmann, and because of the failure of the court to either grant a non-suit or direct a verdict, are untenable.
It is not contended by the respondent that if the amendment sought was in furtherance of justice it might not have-been allowed by the trial court under sec. 2830, Stats. (1898), but it is argued that under the facts presented to the-court in this case it was not an abuse of discretion to refuse-leave to amend. The affidavits filed in opposition to the motion for leave to amend in substance showed: That prior to the-time the answer was served the plaintiff had found a witness-who could and would testify to the manner in which decedent-met his death as averred in the complaint; that the answer was served in October, 1904; that the action had been noticed:
The accident apparently happened at a time and place where tbe witnesses to bow it occurred would not be numerous, if there were any sucb. It was not impossible that sucb evidence might be found even after tbe death of the witness relied on. But after tbe lapse of nearly three and one-half years after issue bad been joined, tbe difficulty of procuring .such testimony, if any existed, might well be so great as to amount to an impossibility, and it is difficult for this court to say that a meritorious cause of action might not be defeated 'if tbe amendment were allowed. In this case it might be a great hardship to tbe plaintiff, after the lapse of so long a time, to compel ber to procure testimony to prove a fact that bad been admitted. She was entitled to rely on sucb admission, and it would not be just that she should lose ber cause of action because at a late date she was obliged to secure evidence that she might be unable to discover even though it existed. It does not appear that she was responsible for tbe delays in bringing tbe action to trial. Under tbe facts presented to the trial court it might well have concluded that the allowance of tbe amendment would not be in furtherance of .justice as required by sec. 2830, Stats. (1898), and this court at least cannot say that tbe trial judge committed an abuse of ■discretion. The following cases amply sustain this view of
The motions for a nonsuit and for a directed verdict being based on the assumption that there was no evidence showing or tending to show how Palmer met his death, and that the-manner in which he lost his life was an issuable fact in the case, or the defendant should have been permitted to make it so by amendment, it follows that no error was committed by the court in denying such motions.
It is alleged that the court erred in receiving the evidence of the witness Grrundmann, giving his opinion as to the length of time Palmer was dead when the witness saw him, because he was not a physician and was not shown to have had the necessary expert knowledge to qualify him to testify. In view of the failure of the answer to deny the time or manner in which Palmer met his death the admission of this evidence-was harmless. In any event he was shown to have had considerable experience as assistant coroner of Milwaukee county, and we think the objection made went to the weight that, should be given the testimony rather than to the competency of the witness.
Error is assigned because the court refused to submit this question in the special verdict:
“Under the conditions as to lights, barriers, guard rails, etc., surrounding or adjacent to the open space on the west side of Sixteenth-street viaduct, on the night of May 19, 1904, was such opening obvious to a traveler on foot crossing the viaduct from the east side toward the opening ?”
In lieu thereof the court submitted the following question:
“Was the condition of such open space obvious to a traveler on foot crossing the viaduct from tire east side toward such opening exercising ordinary care?”
The defendant also claims that it was error not to submit to the jury the following question:
“Did the defendant fail to exercise ordinary care in leaving the opening on the west side of the viaduct in the .condition as to lights, barriers, guard rails, etc., in which it was left on the night of May 19, 1904 ? ” '
“Was such open space (as is referred to in question No. 1) properly guarded at tbe time of tbe injury to tbe decedent ?”
Tbe charge given to the jury under the foregoing question in the special verdict is quite full. It defines tbe duty of tbe defendant in reference to the maintenance of suitable guards to warn travelers of existing dangers. No exception is taken to such charge. Tbe question submitted fairly covers tbe real issue, and under tbe authorities cited no error was committed in refusing to submit tbe question propounded by tbe defendant.
The defendant also requested that the following question be submitted to the jury: “Was the deceased, Thomas Palmer, on the evening of May 19, 1904, under the influence of liquor to any considerable extent ?” Tbe court refused to submit the question. The alleged intoxication of decedent was an evi-dentiary fact bearing upon the defense of contributory negligence. As was said in Fitzgerald v. Weston, 52 Wis. 354, 9 N. W. 13:
“ ... If the evidence tended to prove that the deceased was intoxicated in any degree at the time of the injury, that ■circumstance, with otirer facts in the case, should have gone to the jury on the question of contributory negligence.”
This rule of law is approved in Seymer v. Lake, 66 Wis. 651, 29 N. W. 554. But it does not follow that tbe question should have been submitted to the jury. An affirmative answer would not necessarily entitle the defendant to judgment on the verdict, although it might cast upon the plaintiff tbe burden of showing that decedent used ordinary care. Burns v. Elba, 32 Wis. 605. Tbe jury was required to find whether any want of ordinary care on the part of the decedent contributed to produce bis injuries. Under this question the court charged the jury as follows:
“Intoxication in any degree at the time of the injury is a circumstance to go to tbe jury on tbe question of negligence*464 or want of ordinary care. If you find that the deceased at the time of the injury was so intoxicated as to be incapable of managing and conducting himself with ordinary care and prudence, then you must find the deceased was not in the exercise of ordinary care; and if you find that this want of ordinary care and prudence did contribute in the slightest degree to produce the injury complained of, then you should answer question No. 6 yes.”
Intoxication was an evidentiary fa'ct tending to establish want of ordinary care and was properly submitted to the jury under the question dealing generally with want of ordinary-care. A portion of the instruction is subject to criticism, but no exception is taken thereto.
The court charged the jury as follows:
“By ‘ordinary care’ is meant such care as a man of ordinary care and prudence would have used under circumstances-like those disclosed in the testimony in this case.”
Two objections are taken to this charge: (1) Because the' court did not say that “ordinary care” was such care as a man of ordinary care and prudence would ordinarily have used; and (2) in not using the words “under the same or similar circumstances,” instead of those used by the court, “under-circumstances like those disclosed by the testimony in this-case.” The latter criticism on the charge is entirely unsubstantial and ephemeral in its character. The definition of' “ordinary care” that has met the approval of this court in along line of decisions is that it is such care “as the great mass, of mankind ordinarily use in the same or similar circumstances.” Nass v. Schulz, 105 Wis. 146, 150, 81 N. W. 133; Duthie v. Washburn, 87 Wis. 231, 233, 58 N. W. 380; Hennesey v. C. & N. W. R. Co. 99 Wis. 109, 74 N. W. 554; Ward v. M. & St. P. R. Co. 29 Wis. 144; Stafford v. Chippewa Valley E. R. Co. 110 Wis. 331, 354, 85 N. W. 1036; Dehsoy v. Milwaukee E. R. & L. Co. 110 Wis. 412, 85 N. W. 973; Schrunk v. St. Joseph, 120 Wis. 223, 97 N. W. 946, and many others that might be cited. It would save this court some trouble if a definition so often repeated were adhered to,
Some other errors are assigned. They have been carefully examined, but we think none of them are tenable and that no useful purpose would be served by discussing them, and that the judgment of the court below should be affirmed.
By the Court. — Judgment affirmed.