143 Wis. 442 | Wis. | 1910
The errors assigned in this case are. (1) the-driver was guilty of contributory negligence as a matter of law and the court erred in refusing to so hold; (2) the court erred in the charge given to the jury and also in failing to charge upon certain points; (3) the court erred in refusing to> submit a question to the jury requested by defendant.
Error is assigned because the court refused to submit the following question to the jury: “Were the horses trotting at. the time they approached the crossing ?” Whether they were or not was merely an evidentiary fact bearing upon the contributory negligence of the driver, and the court very properly refused to include the question in the special verdict.
The court instructed the jury that ordinary care on the part of the driver would be “such a degree of care and caution, all things considered, that a reasonably prudent man would have exercised.” The instruction is faulty because of the omission from the end thereof of the words “under the same or similar circumstances.” The standard definition of ordinary care was given in connection with a question in the special verdict dealing with the negligence of the defendant. The omitted clause adds little to the definition. * The error,, if there was one, was technical and did the defendant no injury. Palmer v. Schultz, 138 Wis. 455, 120 N. W. 348.
Error is assigned because the court failed to instruct the jury as to the degree of care which a person circumstanced as
The second question submitted to the jury was: “Is defendant chargeable with want of ordinary care on the occasion in question ?” It may well be doubted that a finding that a defendant is chargeable with a want of ordinary care is equivalent to a finding that he is guilty of a want of ordinary care, inasmuch as the word “chargeable” imports subject to mere accusation only, as well as actual guilt. The departure from the approved form of question worked no injury in the present case and no error is predicated upon it. Cases might well arise, however, where a change in phraseology would result in more serious consequences, and it is suggested that the better and safer practice is to use the common and approved form of inquiry when submitting to the jury a question dealing with ordinary card.
By the Court. — Judgment affirmed.