Neanow v. Uttech

OktoN, J. The material issues upon which the liability of the defendant depended, appear to have been fully and clearly submitted to the jury, and specifically found by them, and, as we think, upon sufficient evidence; and this court would not be warranted in disturbing the findings, unless it is apparent that the jury was misled, to the prejudice of the defendant, in some of the respects claimed by the learned counsel of the appellant, by improper instructions given or proper instructions refused. The parts of the instructions given to which exception is taken, ai’e as follows: '■“1. You are to bring to bear upon this question, your own knowledge and your own judgment.” This is said in respect to the want of care on the part of the defendant; and in its following connection the jury were told: “ It is for you to examine all the testimony, all the sur7 — 587 — roundings, all the circumstances, and then apply your own judgment, your own good sense, and answer the question either in the negative or affirmative.” This limits the use of the knowledge and judgment of the jury to the testimony, and the jury could not have understood that they could act upon their own knowledge and judgment irrespective of the evidence. “ 2. You see you Have not anything to do here with the question of recovery.” The findings were to be special, and no general verdict was required, and it was very proper that the jury should be instructed not to consider the legal consequences of the facts upon which they were required to find, so that they might not be influencedr in such findings by the personal consideration as to which party might gain or lose by them, in the ultimate legal conclusions of the court, drawn from the facts so found. The jury might easily make grave mistakes in anticipating and deciding such questions of law, which might prejudice their findings of fact, and thus the chief purpose of such special findings would be defeated. “3. Now it does not make any difference what want of care he may have been guilty of, how careless he may have been.” This is said in respect to the contributory negligence of the plaintiff, which would defeat his recovery; and the meaning of this clause of the instructions is clearly apparent from the language following it, viz: “ Did that want of care contribute to the injury complained of, contribute to this hurt which he got? If it did not, it is of no consequence.” This was equivalent to saying, “ It makes no difference, and it is of no consequence, what want of care he may have been guilty of, or how careless he may have been, unless you find that such want of care contributed to produce the injury complained of;” and this is a correct statement of the law. “ 4. Now you will answer that, if you think he was not guilty of any want of ordinary care, even in a slight degree, which — 588 — contributed to the injury, why, you will say, No, and write that down there.” The use of the word thinh in this connection, standing alone and unexplained, might have been erroneous, as claimed by the learned counsel, supported by Nauman v. Zoerhlaut, 21 Wis., 466; but when so casually used, and but once, in the charge, in which the jury had been explicitly told that their findings must be governed by the evidence, and that they must use their “knowledge, judgment and common sense” in considering the evidence, it was clearly not error, according to said authority. The suppositive statement of some parts of the evidence, complained of as being partial, improperly suggestive or unwarranted, seems to have been fair, and not likely to mislead the jury from the facts proved, to which the attention of the jury had been specially directed in other parts of the charge. It appears to have been made for the purpose of illustrating and explaining the instructions upon the law; and for such purpose it was not improper. The first, third, sixth and seventh instructions asked and refused, the learned counsel of the appellant has well said, “all have reference to the conduct and status of the plaintiff at the time he received the injury complained of;” audit may also be said, they had reference to the relative legal rights of the parties in respect to the street or highway in which the plaintiff, with his horse and vehicle, was stopping when the defendant attempted to pass with his team and wagon. These instructions educe negligence in law on the part of the plaintiff, from his violation of the “ law of the road,” irrespective of the conduct of the parties at the time and under the .circumstances, which was the direct and proximate cause of the injury. All the facts and circumstances stated in each of said instructions might have existed, and yet the defendant have been guilty of even gross negligence, and the plaintiff not guilty of the least want of ordinary care. It — 589 — is quite immaterial whether either or both of the parties were guilty of the violation of the statute in respect to the use of streets, or of any other law or duty at the time, if such violation in itself did not produce, or directly contribute to produce, the injury. In respect to the relative rights of persons meeting and passing each other on the highway, which are more clearly defined in such case than when passing each other in the same direction, the law is well settled that a person cannot stubbornly and doggedly stand or insist upon his legal rights of the road, even against another person violating such rights, and wantonly produce a collision which a slight change of position would have avoided. O' Malley v. Dorn, 7 Wis., 236. “If a party be found with his vehicle upon the half of the road to which he has not the right, another, in passing or attempting to pass, cannot carelessly or imprudently rush upon him or his vehicle;” “and if such attempt would not be thus reasonably safe and prudent, it is his duty to delay and seek redress by action for any injury sustained by the detention.” Brooks v. Hart, 14 N. H., 307. The true rule in such cases is laid down in Sutton v. The Town of Wauwatosa, 29 Wis., 21, by the late Chief Jnstiee DixoN, in a very able and elaborate discussion of the question, whether the unlawful act of the plaintiff, without negligence, will defeat his right of recovery for an injury caused by the negligence of the defendant. “ To make good the defense on this ground, it must appear that a relation existed between the act and violation of law on the part of the plaintiff, and the injury or accident of which he complains, and that relation must have been such as to have caused, or helped to cause, the injury or accident, not in a remote or speculative sense, but in the natural and ordinary course of events, as one event is known to precede or follow another.” The language of Chief Justice Appleton, in Moulton v. Sanford, 51 Me., 134, is of the same import in respect to the unlawful act of — 590 — the plaintiff as being the canse of the injury. “Ordinarily that condition is usually termed the cause, whose share in the matter is the most conspicuous, and is the most immediately preceding and proximate to the event.” See also McArthur v. The Green Bay & Miss. Canal Co., 34 Wis., 139. These instructions are objectionable, also, because they declare the contributory negligence of the plaintiff as an inference or conclusion from a given state of facts, from which such inference or conclusion do not necessarily follow as matter of law, when in such cases negligence is more properly submitted to the jury. Houfe v. The Town of Fulton, 29 Wis., 296; Wheeler v. The Town of Westport, 30 Wis., 392. That part of the fourth instruction ashed and refused, in respect to the negligence of the defendant', was substantially given in the charge; and that part of it relating to the exercise of the defendant’s best judgment under the circumstances, lays down a very unsafe and quite, too limited a rule of ordinary diligence and common care. The true rule, as laid down in Dreher v. The Town of Fitchburg, 22 Wis., 675, is, “ such care as the great majority of mankind observe in the transactions' of human life,” and it is not left merely to the measure of one’s own judgment. By the authority of this case, the second instruction asked and refused was also objectionable in its definition of contributory negligence, as “ negligence in the slightest degree,” and the true rule was given by the court in the charge, “ any want of ordinary care, even in a slight degree, which directly contributed to the injury.” The specific instructions of the court in this case, in application to the special issues submitted, were very full and explicit, and appear to have been very carefully considered by the learned judge who presided at the trial, and are substantially correct. The findings of the jury embraced every material question involved in the plaintiff’s right to recover, and appear to have been warranted by the evidence; at least there is no clear — 591 — preponderance of the evidence against them or either of them. In respect to the amount of damages recovered, and which is claimed to be excessive, the jury and the circuit court were in better situation to judge of the extent and permanency of the plaintiff’s injury, than this court can be from the record here presented; and, although the damages awarded to the plaintiff may impose a great hardship upon the defendant, we think we would not be warranted in saying that they were grossly disproportionate to the loss of time, expenses of cure, pain, suffering and disability suffered by the plaintiff, as disclosed in the evidence. By the Court. — The judgment of the circuit court is affirmed, with costs.