120 Wis. 223 | Wis. | 1904
If the evidence in this case conclusively shows contributory negligence on the part of respondent', as counsel for appellant claim, sustaining their contention that the trial court erred in refusing to grant their motion for a directed verdict and their contention that the one rendered, exonerating respondent from the charge of contributory negligence, is contrary to the evidence, then there is little need of discussing any other subject in this opinion; since, though •in that event, as the record stands, the cause must go back for a new trial, it does not seem probable that a second trial in fact would profit respondent.
As indicated, the main proposition to be solved is this: Is it consistent with ordinary care for a person riding in a buggy, drawn in the usual way, to attempt to pass over a section of highway where the traveled track for many rods is on a narrow dirt fill so high that to drive off the side thereof would be attended with great danger, the top of the fill being curved and so narrow that a mere step by the horse outside such track would be liable to carry him and the occupants of
Great reliance is placed by respondent’s counsel on Jung v. Stevens Point, 74 Wis. 547, 43 N. W. 513. It is sufficient to say that the circumstances involved there included the existence of a fence parallel with the traveled track and ap
The foregoing renders other questions discussed in the briefs of counsel of little importance; but for the beneficial influence that a brief mention of them may have on future trials in the same jurisdiction we will notice them.
There was much evidence tending to show that the- condi- * tion of the highway at the time of the accident, as regards water, was extraordinary. That was an important feature
The court correctly instructed the jury that the burden of proof on the question of whether plaintiff was guilty of contributory negligence was on the defendant. There is no exception to the rule in that regard, that where plaintiff’s evidence tends to show contributory negligence on his part the burden is upon him to show that he was free from such fault, as counsel for appellant seem to suppose. Hoyt v. Hudson, 41 Wis. 111; Prideaux v. Mineral Point, 43 Wis. 524; Hoth v. Peters, 55 Wis. 410, 411, 13 N. W. 219, and Strong v. Stevens Point, 62 Wis. 265, 22 N. W. 425, upon which they rely for authority to the contrary, are merely to the effect that the burden to establish contributory negligence, in a case of this kind, is cast upon the defendant because of the ■presumption of law that every person acts with ordinary care in the absence of evidence to the contrary; hence when the
The court instructed the jury in substance thus:
If you find that a person of ordinary intelligence and prudence would do what the plaintiff did, then she was free from contributory fault.
That was not a correct test of ordinary care, though we hardly see how reversible error can be predicated thereon, since the idea expressed to the jury was suggested to the-court in several requests for instructions made by appellant’s counsel. It is not true that a person of ordinary care is as a matter of law always to be deemed free from contributory-fault as to everything which he does, since a person of common prudence may on occasions do very negligent acts. The-proper standard by which to measure the conduct of a person in a given situation, in determining whether he was guilty-
“If under the same circumstances a person of ordinary intelligence and prudence would have ventured over such defective highway, then such traveler would not be held guilty of á want of ordinary care.”
There the faulty idea was presented to the jury in a strikingly prejudicial manner by reason of the use of the word “venture.” It must be clear that the fact that an ordinarily careful person might on some particular occasion “venture” to assume imminent risk of receiving a personal injury would by no means suggest that his conduct was consistent with ordinary care.
Complaint is made because the court did not submit to the jury, as part of the special verdict, a question covering the subject of whether plaintiff’s husband was guilty of contributory negligence. That was a fact in issue and should have been covered by a question separate from that regarding the contributory fault of plaintiff. But since no special request in that regard was made by appellant’s counsel, and the instructions given by the court were so worded as to make the answer to the question as to plaintiff’s contributory fault cover that of her husband as well, and by the answer to the complaint the accident was alleged to have been caused solely by the contributory fault of the plaintiff, it does hot seem that the error assigned can be sustained as prejudicial.
Complaint is made because the court at several points in the instructions to the jury so worded the same as to indicate the answer necessary to sustain plaintiff’s claim. These instances are given to illustrate tire fault suggested. In respect ■to the question covering the subject of whether the highway
“The law of this state is that towns and municipalities shall keep their streets and highways in a reasonably safe condition for the passage of travelers at all seasons of the year.
“The law does not require, nor does the town undertake to make its highways perfectly safe so that no accident can happen ; but the town is required and it is its duty to make them in view of the situation, the character of the highway, and the season of the year, in a reasonably safe condition.”
In regard to the question of whether plaintiff was guilty of contributory fault or not, the court said:
“It was the duty of the plaintiff in this case to exercise ordinary care to protect herself from injury; and you are required by your answer to this question to say whether she did, under all the circumstances shown in the testimony, exercise such ordinary care.”
Without intending to indicate at this time that such a method of instructing a jury under the circumstances of this case is fatally erroneous, we will take occasion to condemn it as not the best method, and as impairing to some extent the value of a special verdict. True, as counsel for appellant argue, it was not necessary or best for the court, in instructing the jury as to the question covering the subject of whether the highway was reasonably safe or not, to say anything about what the law required of the town authorities; or, in instructing in respect to the question as to whether plaintiff was guilty of contributory negligence, to say anything about what the law required of her in that regard as a condition of her right to recover. As to the first subject mentioned the instructions might better have been confined to an explanation of what constitutes a reasonably safe highway, and a statement that the burden of proof was on the plaintiff to satisfy the jury that the highway in question did not come up to that standard. As to the second subject mentioned, the instructions might better have been confined to a clear state-
The foregoing covers all the questions which we deem of ■any special importance in the case in any view of it. The judgment must be reversed because the evidence shows conclusively contributory negligence on the part of the plaintiff.
By the Court. — The judgment is reversed and the cause remanded for a new trial.