125 Wis. 102 | Wis. | 1905
Lead Opinion
Error is assigned upon the admission of testimony tending to show the defective condition of the sidewalk for some weeks prior to the day of the accident in the immediate vicinity of the hole complained of as bearing on the question of notice to the city officers of the defective condition of the sidewalk. It is quite clear from the evidence that the defect found by the jury consisted of a hole extending from the center stringer to the side of the walk and that it was due to the worn and decayed condition of the plank. The evidence tended also to show that other planks in close proximity to the defect found had been much worn, decayed, and broken for a considerable time before the accident. Under these circumstances the bad general condition of the walk would attract attention and lead to the discovery of the defect in question. This evidence was competent for this ■purpose, and by the instructions of the court was properly confined to this question in the case. Shaw v. Sun Prairie, 74 Wis. 105, 42 N. W. 271; McHugh v. Minocqua, 102 Wis. 291, 78 N. W. 478: Lyon v. Grand Rapids, 121 Wis. 609, 99 N. W. 311.
Defendant submitted to the court a request declaring that in cases of this nature the burden of proof was upon the plaintiff to establish by a preponderance of the evidence the
Error is assigned in respect to the court’s definitions in its instructions of the meaning of the terms “reasonable diligence” and “ordinary care.”
The court instructed the jury that:
“The words ‘ordinary care’ . . . mean such prudence and' care as an ordinarily careful person would use under the-same or like circumstances;” and again, in another part off the charge: “The reasonable diligence here mentioned required of public officers of a city having charge of its public streets and walks means such 'diligence as like officers with, like responsibilities usually and ordinarily employ in the discharge of their duties.”
The phraseology employed is not as clear and as apt as some which might have been chosen from definitions of these terms in the decisions of this court, but the words convey the-
“Such expressions as ‘persons’ or ‘a person’ or ‘people ordinarily use’ have been uniformly condemned by the courts-as giving an incorrect standard by which to measure the conduct of a person charged with actionable negligence.”
If the instructions before us came within this class we-would necessarily condemn them as prejudicially erroneous. The question, then, arises whether these instructions as given by the court embody the ingredients essential for informing the jury as to what constitutes ordinary care and reasonable diligence as applied to the facts and circumstances of this-case. It is true the court did not adopt the form of expression which has been repeatedly approved by this court, and such departure is to be condemned as not the best and safest-practice. When a particular form of expression for the enunciation of a rule of law has been sanctioned and approved as correct and best adapted for conveying the idea to a jury it should be adhered to by the trial courts to avoid the liability and danger of errors which are very liable to follow the use of different terms and a new phraseology. The terms employed in the above instruction as defining “ordinary care” are, we think, free from fault and are within the strict limits of the decisions. In speaking of the reasonable diligence required of city officers having charge of its public streets and walks, the court said it “means such diligence as
An exception is urged to the refusal of the court to give ■the instruction as to the rule of "Falsus in uno, falsus in om-nibusTo warrant the giving of such an instruction there must be a sufficient basis in the evidentiary facts and circumstances adduced as tends to show that there was wilfully false swearing. 'Whether such á rule applies to the consideration of the evidence of a case is primarily a question for the trial court and not for the jury. It therefore devolves upon the trial court, before ruling on such a request, to determine whether, under the facts and circumstances, there is ■any evidence tending to show that a witness or witnesses whose evidence is-to be submitted to the jury did wilfully
“Such an instruction is always calculated to intimate that in the opinion of the court trying the case some of the witnesses had testified falsely, and the court presiding at the trial is better qualified than we are to determine the propriety of giving or refusing such an instruction.”
The reasoning adopted in Powell v. Ashland I. & S. Co. 98 Wis. 85, 73 N. W. 573, though applied to a different question from the one here involved, applies with cogency to this case. It is there said that whenever the trial court concludes that there could be but one reasonable inference from all the evidence in the case as to the question involved, the question thus presented being one of law for him to decide, “a decision thus rendered must be affirmed on appeal, unless it clearly appears that it was erroneous.”
“It is the uniform rule that their [the trial courts’] determination of questions of fact cannot be disturbed unless*112 against the clear preponderance of the evidence. The reasons for that rule do not apply as strongly to decisions as to-whether the inferences to be drawn from undisputed facts-are all one way, but the opportunities which a trial judge has for determining such questions are superior to those possessed by the appellate court, and on this ground are entitled to considerable weight, and, where the question is-doubtful, to controlling weight.” Ingalls v. State, 48 Wis. 647, 4 N. W. 785; 2 Thompson, Trials, §§ 2423—2425; Blashfield, Inst, to Juries, § 252; State v. Palmer, 88 Mo. 568; While v. Maxcy, 64 Mo. 552; Kay v. Noll, 20 Neb. 380, 30 N. W. 269; Slate v. McDevitt, 69 Iowa, 549, 29 N. W. 459; State v. Thompson, 21 W. Va. 741; James v. Mickey, 26 S. 0. 270, 2 S. E. 130; Strasser v. Goldberg, 120 Wis. 621, 98 N. W. 554.
It is insisted in argument that plaintiff so contradicted the testimony given by her on a former trial and that she made-such denials of plain and evident facts, within her knowledge, as tends to show that she wilfully swore falsely. In support of this claim it is pointed out that she stated that-she passed over this walk in daylight at different times during a period of several weeks before the accident, and that she claims not to have seen the hole, and that on the last trial she testified that she went from her house and called on Mrs. Landry for about twenty minutes before passing over this walk in going to the store, while on the former trial she-wholly omitted to testify to this fact. It is urged that this fact was adduced at the last trial for the purpose of showing that she passed over the walk at so late an hour in the evening that it was impossible for her to see the hole in the walk, and that such evidence was adduced for the further purpose of freeing her from contributory negligence. There is nothing in this evidence to indicate that this was a wilfully false statement or that there was a wilful suppression of the facts on the former trial. It seems simply to have been overlooked. Upon this point she is fully corroborated by the evidence of Mrs. Landry, on whom she called, and by that of her son
The court instructed the jury on damages as follows:
“You should consider the nature and extent of her injuries and physical pain and suffering, and the mental injury and anxiety which she has endured, and the extent of' impairment, if any, of her physical or mental powers, or-both, which you believe from the whole evidence to have been-brought upon her by reason of such injuries.”
It is complained that it was error to include any damages: for impairment of her mental powers. There was evidence: thát plaintiff’s spine was affected, and^that this difficulty extended into the neck, and caused much pain in the neck and! head, and that she suffered much from severe headaches, and that she was often afflicted with coma. We find the instruction was justified by the evidence.
Appellant assigns twenty-nine separate errors, some upon the court’s refusal to give the thirty-three separate propositions of law requested by it, and a number upon the charge as given by the court. We have examined them, and considered those which present material and pertinent questions
“Refusals to give mere explanatory instructions, or instructions giving a rule of law in a different form from that used by the trial court without suggestion from counsel, such form being free from error and the language understandable by persons of ordinary comprehension, does not constitute prejudicial error, if error at all, regardless of whether a requested instruction would probably have aided the jury in better comprehending the rule of law involved. Buel v. State, 104 Wis. 132, 151, 154, 80 N. W. 18. When and when not to give mere explanatory instructions is almost wholly a matter of judicial administration, as to which this court will do no more than judicially advise.” Duthie v. Washburn, 81 Wis. 231, 58 N. W. 380; Fox v. Martin, 104 Wis. 581, 80 N. W. 921.
We find no error in the record.
By the Court. — The judgment is affirmed.
Dissenting Opinion
(dissenting). My dissent is from the approval <of the instruction that the reasonable diligence required of public officers “means such diligence as like officers with like responsibilities usually and ordinarily employ in the discharge of their duties.” It is unfortunate, after this court has with so much industry defined the essentials of ordinary care and prescribed the approved manner of conveying that definition, even with some appearance of impatience in criti-cising trial courts for departing ever so slightly from such