Milwaukee Gas Light Co. v. Schooner "Gamecock"

DixoN, O. J. The great question in this ease is that which relates to the duty of tbe company to lay its pipes so as not to interfere with the rights of navigation. We have examined this question Avith much care, and are satisfied that the charge of the learned judge is a correct statement of the law applicable to the case. A subject which has been so frequently and ably discussed elsewhere, and which was so clearly expounded by the court below, requires no further discussion at the hands of this court. The question is settled by authority, and we fully sanction and affirm all that the court below said to the jury upon it. If it had been error for the court to refuse the sixth instruction asked by the plaintiff, such error was cured by the explicit language of the general charge upon the same point. The jury were directed to take all the circumstances into consideration, and if they came to the conclusion, that, after the anchor came in contact with the pipes, the injury might have been prevented by proper care and diligence on the part of the vessel owners, then the plaintiff would be entitled to a verdict. After having already thus instructed the jury, we do not think it was the duty of the court to repeat the instruction, orto give another to the same effect at the request of plaintiff. And in the entire proceedings we see no error, except in the admission of the part owner of the vessel, Mr. Wills, as a witness. He was admitted contrary to the provisions of chapter 17, Laws of 1863, which requires notice of his intended examination to be given. Ernst v. Steamboat Brooklyn, 22 Wis. 649; Sika v. The Chicago & North - Western Railway Company, 21 [152] id. 370. But as Mr. Wills testified to no facts material to tbe case, or which the jury must not have found in the same way without his testimony, we hold that the error in admitting him was immaterial, and the judgment must be affirmed. By the Court. — Judgment affirmed.