135 Wis. 208 | Wis. | 1908
In this case the court directed a special verdict, not findings of fact in connection with a general verdict; and hence the rule that the questions submitted'must relate to and cover the controverted and material issues of fact made by the pleadings applies with the same fo^ce as though one of the parties had in due time requested a special verdict. When the court announced its purpose to take a special verdict the defendant’s counsel submitted to the court, as he properly might, two questions which in his opinion related to mate- ' rial issues of fact in the case and were proper to> be included in the special verdict. Conceding that the questions did cover such material is'sues, it would not be error to refuse them in the form requested provided the court sufficiently covered them in questions of its own framing; for, as has
This court has several times held that where specific acts of negligence are charged by the complaint, denied by the answer, and litigated on the trial, a special verdict should contain specific questions covering these alleged acts, and that the submission of a general question simply asking whether the defendant was guilty of want of ordinary care which proximately caused the plaintiff’s injury is not a compliance with the special-verdict statute and will be error, at least where the proper specific questions are requested. Lee v. C., St. P., M. & O. R. Co. 101 Wis. 352, 77 N. W. 714; Bigelow v. Danielson, 102 Wis. 470, 78 N. W. 599;
Nad this been the fair import of the charge as given, we should find no serious difficulty with it, but the sentence objected to requires the defendant to keep a reasonably vigilant lookout to prevent injury or. accident to- a licensee. The words “vigilant lookout” are almost universally used in reference to the lookout to be kept by train employees in the movement of a train, and we think would naturally be so understood by the jury. In the present case the claim that there was-negligence in the movement of the train had been abandoned, and the only claim in fact(litigated was. the claim of negligence in the placing of the truck. In this respect, therefore, we think the instruction was well calculated to mislead the jury by leading them to believe that they might
By the Court. — Judgment reversed and action remanded for a new trial