2 Wis. 216 | Wis. | 1853
By the Qourt,
It appears from the testimony returned with the bill- of exceptions, that the parties to this suit and their neighbors, were engaged in repairing a highway ; that it became necessary to cut trees, with which to construct a causeway, and that while the plaintiffs in error were felling trees to be used in its construction, the defendant in error was hauling with his cattle those which had been cut, to the place where they were to be used.
While the'parties were thus engaged, a tree which . the plaintiffs in error were chopping, fell upon the cattle of the defendant in error, killing one, and greatly injuring another. A suit to recover the damage was brought by the defendant in error before a justice of the peace, and taken, to the -county court for Jefferson county by ' appeal, where the defendant in
The first instruction asked for is as follows : “That they (the jury) must believe from the evidence, that the injury complained of was either the result of gross negligence on the part of the defendants, or they must find for the defendants, unless they also find that the defendants committed the offence which caused the injury, with the intention to commit a wrong.” The second one is as follows : “ that if the jury believe from the evidence that there was no gross negligence or carelessness on the part of the defendants, then and in that case, they must find for the defendants.”
The fourth instruction is as follows : “that if the jury believe from the evidence, that the plaintiff and defendants were both employed in performing separate duties and service, tending to the same end, and that the plaintiff, while performing his own appropriate aud peculiar duty, was injured by the negligent act of the defendants in respect to their branch of the service, the plaintiff cannot recover, unless the jury also believe from the evidence that the defendants wilfully committed the injury.”
The judge refused to give the instructions asked, but gave the first and second, with the omission of the word “ gross,” and added a qualification to the third, which need not be noted.
We think the judge erred in refusing to give the first and second instructions applied for. As the
The judgment must be reversed, and a new trial ordered.