Pike v. Chicago, Milwaukee & St. Paul Railway Co., 40 Wis. 583

Pike v. Chicago, Milwaukee & St. Paul Railway Co.

40 Wis. 583 | Wis. | 1876

Cole, J.

Without considering the exceptions taken to the rulings of the court on the trial, we think the judgment must he reversed becausé improper questions were submitted by the *586circuit court to the jury, upon which to find a special verdict. Some of the questions were clearly improper, and should never have been submitted. The criticism passed upon them by the defendant’s counsel seems to us entirely just and well founded. In the form in which they were submitted, the jury were not asked to find upon matters of fact arising upon the evidence, but were invited to speculate whether it was probable that the depot and plaintiff’s goods might have been saved from being-burned, if a night watch had been provided to take care of the depot, or some one had slept in the building. Of course this was allowing the jury to speculate as to probabilities and contingencies which they had no right to consider. Eor, as a matter of law, we do not think the failure to provide a night watch or to have some person sleep in a depot situated as that of Boscobel was, in which the daily average value of property stored did not exceed $500, as shown by the evidence, was ordinary negligence. Ordinary negligence is the absence of such care and diligence as a man of ordinary prudence would use in taking care of his own property placed in like circumstances. ' How many men of ordinary prudence provide a night watch for their stores and warehouses, where only $500 worth of property is kept or stored ? Probably few, if any, persons exercise that degree of diligence in taking care of their own property. At most, the defendant was bound to exercise only ordinary prudence as a warehouseman in taking care of plaintiff’s property. This being so, it was an entirely unwarranted course to permit the jury to speculate as to what would probably have happened under an assumed state of facts which had no reference to the question of the defendant’s liability. The charge is often made, that juries are apt to find railroad corporations liable for losses and injuries under circumstances where an individual would not be held responsible. This reproach upon the administration of justice — if ever well founded — should surely not be merited by any action of the court in bringing about by some ingenious pro*587cedure a verdict against the company. Many of the questions submitted to the jury as the basis of a special finding were open to the objection, either that they were entirely irrelevant to the proper issues in the case, or were plainly calculated to secure a favorable verdict for the plaintiff. That this was the direct and necessary result in requiring the jury to conjecture and speculate as to what might have happened if the company had kept a night watchman about the depot, or had some one sleep in the building, is plain. The proof was clear that it was not customary or usual to keep night watchmen at depots of the size and importance of that at Eoscohel; and no such questions as the first six should have been submitted to the consideration of the jury. It was a fair question, whether a kerosene lamp was left burning in the telegraph office or reception room, and whether the fire originated from such lamp; and, if a lamp was thus left burning, no one being in the depot, whether it was not such an act of negligence on the part of the employees as rendered the company liable for the loss of the goods. But all the questions in regard to the keeping of a night watchman about the depot, or of having some one sleep in the building, and as to what would probably have happened had that been done, should have been excluded from the consideration of the jury. Because the cause was not fairly presented to the jury in the questions submitted by the circuit court, there must be a new trial.

By the Gowt. — The judgment of the circuit court is reversed, and a new trial ordered.