107 Wis. 201 | Wis. | 1900
A great multitude of questions are raised •on this appeal. The defendant complains that evidence
Turning, now, to the plaintiff’s requests, we find a list of fourteen distinct propositions of law, which the record' recites were given, and to which the defendant excepted. Many of these requests contain abstract propositions of law,, proper to have been given had the case been submitted on a general verdict, but distinctly improper when a special verdict is required. Hot one of them is addressed to any particular question, although some of them would have been proper had they referred to and been given when the jury’s, attention was being directed to the particular fact for decision. The record fails to show at what stage of the proceedings these requests were given, or whether they were given with reference to any particular question. The rulo
Question No. 2 of the verdict, and the answer thereto, are as follows: “Was the said street at the place where the plaintiff claims to have been injured at the time in a defective or dangerous conditioner out of repair?” “Yes.” The objection suggested to this finding and to the verdict is that it does not cover any fact which establishes the city’s liability under the statute. The city’s liability is imposed by sec. 1339, ■Stats. 1898, which makes it responsible for any damage which shall happen to any person “ by reason of the insufficiency or want of repairs ” of any street within its limits. Under this section, the test of the city’s liability is whether such street was.in a reasonably safe condition for use. A street may be defective or out of repair and still be in a reasonably safe condition for travel. Hence the finding in the disjunctive that the street was “in a defective or dangerous condition or out of repair,” without any other fact to •support it, fails to show actionable negligence. It is not enough to say that the court properly instructed the jury as to the measure of the defendant’s liability. The verdict on its face must find the facts, or it is fatally defective. Kucera v. Merrill L. Co. 91 Wis. 637. But it is said that this finding is in the words of the charter of the city (sec. 20, subch. VIII, ch. 123, Laws of 1891), and is therefore sufficient. That ■section does not assume to impose any liability upon the city, but merely relates to the question of notice.
The defect complained of was a hole about two feet long and fifteen inches wide, in the shape of a half moon, and close to the sidewalk. It had apparently been caused by the washing of surface water escaping from the street. Its dimensions was a matter sharply in dispute, as was also its existence for any great length of time in the condition tes;
A multitude of objections are urged against the charge of the court, some of which will now be noticed. J3y question 4 the jury found that plaintiff’s injury was caused by defendant’s negligence. The court charged the jury as follows: “Negligence means this: It means a want or lack.of ordinary care and prudence. Ordinary care and prudence is such care and prudence as is exercised by the mass of mankind in their own daily affairs.” A similar instruction was condemned in the recent case of Boelter v. Ross L. Co. 103 Wis. 324. But to further confuse the case, the court, at-defendant’s request, and with reference to the standard by which plaintiff must act, instructed the jury that “ordhwy care and prudence means the care and prudence which persons of ordinary care and prudence exercise under similar circumstances.” This was correct, but, considered in connection with the one above referred to, it left the jury without any very definite idea of what ordinary care really meant. In cases of this kind, the same standard of care is required of both plaintiff and defendant, and is such as the
Several objections are made to the manner in which issue of plaintiff’s intoxication was submitted to the jury. In his general charge the court admonished the jury to find the fact according to the evidence whether he was drunk, and 'whether the intoxication'was such as to render him incapable of exercising ordinary care. The first question was answered in the affirmative, and the latter in the negative.
At the request of the parties the court gave a number of instructions covering the questions of intoxication and plaintiff’s duty to exercise care, but it does not appear that they were addressed to any particular question in the verdict. We cannot notice all the objections that are taken. The fact that the court did not apply the instructions requested and given to the question to which they were applicable was distinct error, as already noted.
The court instructed the jury that the burden of proving intoxication was upon the defendant, as was the burden of showing that by reason thereof the plaintiff did not exercise ordinary care, and that they could not “ assume contributory negligence in the absence of satisfactory proof on that point.” In this connection the court refused to instruct that, “if plaintiff was intoxicated, such intoxication is evidence from which the jury may infer that plaintiff was guilty of contributory negligence.” There can be no doubt of the rule that negligence may be inferred from circumstances, and while, as a matter of law, intoxication is not contributory negligence, or conclusive evidence of such negligence as will prevent a recovery, still such intoxication is evidence of negligence from which the jury are at liberty to infer such negligence as will bar the action, if the attendant facts so warrant. The defendant was entitled to the instruction asked in view of a further instruction asked and refused
Another objection to the finding as to intoxication arises from the evidence. The plaintiff and his witnesses deny that he was intoxicated. Of the defendant’s witnesses, the doctor who treated plaintiff immediately after the accident says he was “ pretty drunk.” The bridge tender, who was near the place of the accident, said he was “ pretty well drunk,” and that he saw him stagger and fall down. Another witness saw him lying on the sidewalk shortly before the accident, and offered to help him up. His estimate of his condition was that he- “ was good drunk.” A hotel keeper at whose place the plaintiff called between four and five o’clock in the afternoon testified that he staggered and held himself up on the chairs; that he was drunk, and “very staggery.” One or- two others saw him in the same condition. Several men also testified to conversations with plaintiff after the accident, in which he admitted his intoxication. Substantially all of the witnesses agree that his condition was such that he staggered and was unable to control himself.
The point is made that, if there was evidence sufficient to show intoxication as the jury found, the same evidence shows that he was in such a state of intoxication as to be unable to properly care himself, and that the finding of the jury that he was not so intoxicated as to be incapable of conducting himself with ordinary care is contrary to the evidence and inconsistent. There is considerable force to this suggestion. In the light of the evidence, it is difficult to see how the jury arrived at the conclusion stated. The overwhelming weight of evidence is that he was so intoxicated as to be incapable of caring for himself. Whether such intoxication contributed to produce the injury was a question for the jury under proper instructions and a consideration of all the facts and circumstances in the case.
A similar provision in the charter of the city of Oshkosh has been construed in several cases in this court. Studley v. Oshkosh, 45 Wis. 380; Sullivan v. Oshkosh, 55 Wis. 508; Adams v. Oshkosh, 71 Wis. 49. In the Studley Case we read: “ But we cannot think that the legislature intended to relieve the city of Oshkosh from all liability for injuries caused by defective streets therein, unless notice in fact of such defects be given to an alderman of the proper ward, in a case in which the defect is patent, and readily discoverable upon due official examination and inspection of the streets. In '.such a case we think the legislature intended, in the absence •of actual notice to the alderman, to give the city three weeks in which to discover and remove the defect, and, failing to -do so ,in that time, to hold the city liable for the consequences of its negligence.” In the Sullivan Case it is said: “ Under this section it is necessarjr for the plaintiff (in the
Under these decisions, it is apparent that, unless it can be said that the defect in question was of such a nature and of such long standing as to charge the city with notice, the court’s instruction was improper, and the jury’s finding will not support a judgment. Considering the nature of the de-iect, and its location with reference to the customary use of the street, we have already determined that the court could not say, as a matter of law, that it was such a defect as. would make the city absolutely liable. That was a matter for the jury to find, under all the facts and circumstances in the case. Such being the fact, and actual notice not being relied upon, the question should have been so framed as to-permit the jury to find whether the conditions were such as to bring constructive notice home to the city. This becomes, all the more significant when we consider that the witnesses who testified that the hole had existed for several months, before the accident did not describe its appearance or dimensions when first observed. It is a matter of common knowledge that a hole located as this was would be very likely to-enlarge more or less during the rainy fall mouths.
Plaintiff’s accident happened in November, 1891. Dr. Oviatt was permitted to testify that he performed an operation on plaintiff’s leg in the summer of 1893, for which he-
One August Ebert testified that he was passing the place of the accident while the plaintiff was lying there, but that it was so dark that he could not recognize who was there. Subsequently he was recalled, and asked whether, in his judgment, the plaintiff was intoxicated. Against defendant’s objection, he was permitted to answer that he saw no indications that the man was drunk. The testimony was clearly improper.
Other objections have been raised and discussed, but sufficient has been said to cover those that are deemed material.
By'the Court. — -The judgment of the circuit court is reversed, and the cause is remanded for a new trial.