77 Wis. 14 | Wis. | 1890
The complaint alleges two causes of action. The first consists in negligently providing and using an unsafe, defective, and insecure edger, and stating wherein the same was unsafe, defective, and insecure. In answer to the third question the jury found, in effect, that the edger was at the time out of repair, so that it did not do its work properly and safely. By the fourth question submitted the jury were required to find whether such “ want of repair ” consisted of “ a cracked, or broken feed roller or rollers, or rollers that w&re worn out of proper form by use.” To the alternative thus presented the jury simply answered, “ Yes.” The answer to the fifth question is to the effect that such want of repair caused the board or plank to be thrown back against the plaintiff. From the answer to the fourth question, it is impossible to tell whether the jury found such roller or rollers cracked or broken, or merely worn out of proper form by use. Carroll v. Bohan, 43 Wis. 218; Jewell v. C., St. P. & M. R. Co. 54 Wis. 617; Murray v. Abbot, 61 Wis. 198. It follows that the question submitted was defective, and the answer indefinite and uncertain. Besides, it is strenuously claimed that if such want of repair consisted only in such rollers getting out of proper form by use or wear, then this finding is outside of the issues in the case, and unsupported by the evidence. Certainly no such defect is alleged in the complaint. This is conceded by the learned trial judge in his charge. Counsel for the defendant boldly assert in their printed brief “ that there is not a word of proof in the case that either of the rollers . . . were ‘ worn out of proper form by use ’ or otherwise.” The counsel for the plaintiff fails to point out any evidence tending to prove such fact, and we find none in the record.
After the cause was submitted to the jury, they returned and informed the court that they did not understand the fifteenth question as it had previously been submitted, whereupon the court altered the same so as to read as when finally answered. Thereupon the jury again retired, and after awhile again returned with all the questions answered to the effect mentioned in the foregoing statement, except the thirteenth, as to which they found, in effect, “ that there was no proof upon which they could base an answer to that question.” Thereupon the counsel for the defendant insisted that such answer was equivalent to, and in effect, an answer in the negative, and should be received.
To each of such several instructions, directions, and pro
It is strenuously claimed on the part of the defendant that there is no evidence to support the finding of the jury to question 9-J-. Upon that question the court, among other things, charged the jury: “Now you must determine this from the evidence in the case,— from the preponderance of it; and very likely you will have to determine it from inferences drawn from the testimony in the case. . . . I don’t remember any testimony at all on that subject, directly in respect to that,— that he told them anything about his acquaintance with machines or machinery; and, if you don’t remember any testimony on that subject, or if there isn’t any on that subject, you will have to determine it upon inferences that you may draw from what experienced men about machinery of that kind wquld be likely to know when they saw a man — a stranger — come around their machines. If they were able to tell right along whether he is a person that knows nothing about machines or machinery of that kind they set him to work about, why you will perhaps know about it, and if not you will have to do the best
The finding of the jury upon the fifteenth question submitted is based entirely upon an hypothetical state of facts which the plaintiff insists did not exist, and hence the impropriety of submitting it, or allowing it to remain as a basis of the judgment, is quite apparent. This court has frequently held that it is not the province of a special verdict to submit questions not in issue, or not controverted because admitted, as in the case at bar, but the same .should be limited to material and controverted questions of fact. Heddles v. C. & N. W. R. Co. 74 Wis. 257, 258, and cases there cited. But, notwithstanding the submission of some questions not in issue, and others not controverted because admitted, yet the court failed to submit to the jury the most material and principally controverted question of fact in issue as to each of the two causes of action alleged, to wit,
By the Gourt.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.