Ohlweiler v. Lohmann

PiNNEY, J. 1. A careful examination of the testimony on the question whether the mare let to the plaintiff by the defendants was accustomed to kick so as to be dangerous when driven in single harness when she did not have the lines under her tail, and answered by the jury in the negative, discloses such a conflict of evidence as required [203] that question to be submitted, as- it was, to the jury. The action of the court below in amending the verdict by striking out such negative answer and substituting for it an affirmative one, cannot be said to be in accordance with the uncontradicted evidence on that point. For this reason it was error to amend the verdict by substituting the affirmative answer for the negative one of the jury. There was evidence to support the finding of the jury thus rejected by the court, and the finding was a most material one. If there is any evidence to support a material finding, it cannot be stricken from the special verdict or a directly opposite one substituted for it. Dahl v. Milwaukee City R. Co. 65 Wis. 371. If a finding in a special verdict is against a decided preponderance of the evidence, the remedy is by motion for a new trial. For this reason the judgment of the circuit court must be reversed; and when judgment of reversal, is rendered on the ground of an erroneous amendment to a special verdict in a material respect, it is the practice of the court to award a new trial, as the circuit court ought to have done instead of amending the verdict. Annas v. M. & N. R. Co. 67 Wis. 60, 61. The motion of the defendants for judgment in their favor was therefore properly overruled. The action of the circuit court shows that it was of the opinion that the finding in question ought not to stand, but the court did not adopt the proper remedy. The first question was answered by the jury in the negative, and to the effect that the mare was not accustomed to kick so as to be dangerous when driven in a single harness, wThen she did not have the lines under her tail. The second question was to be answered only in case the first question was answered in the affirmative, but the jury answered it, notwithstanding, in the negative, and to the effect that the defendants were not 'a/ware that the mare was accustomed to kick under the conditions mentioned in the first question, so as to be dangerous when driven in single [204] harness. The third question was to be answered only in case the first and second were both answered in the affirmative, but the jury irregularly answered it, notwithstanding, in the negative, as they had the second, and to the effect that the defendants did not inform the plaintiff, when the mare was let to him,-that she was accustomed to kick under the conditions stated in the first question, as it was proper they should do if they made any finding thereto at all, having already found that the, defendants had no hnouoledge that she was so accustomed to kick. The jury found, in substance, in answer to the fifth and sixth questions, that the plaintiff was warned, when the mare was let to him, that she wras accustomed to get the reins under her tail, and that she was liable to kick when that occurred, and that she did not get her tail over the reins before she kicked and injured the plaintiff. It will be seen, therefore, that the case was made to turn in the circuit court entirely upon the answer to the first question substituted by the court for the one given by the jury. To sustain such a substitution or amendment, where the evidence is conflicting, is a direct invasion of the right of trial by jury secured by the constitution. 2. The action was founded in tort, and not on any contract relation. The gist of the action was the negligence of the defendants. The verdict before amendment did not entitle the plaintiff to judgment upon the cause of action set out in the complaint. The specific negligence alleged is that, knowing the vicious disposition and unsafe and dangerous habit of the mare to kick when driven in harness, the defendants wrongfully neglected to inform or warn or caution the plaintiff of the fact or that she was unsafe or dangerous to drive or use in harness. The veri diet did not, as returned, establish the fault or vicious character of the animal in the general terms alleged. It found that the mare was not accustomed to kick so as to be dam [205] gerous when driven in single harness, when she did not have the lines under her tail, which was the condition of affairs when she kicked the plaintiff. As against what she was liable to do when she got the lines under her tail, the plaintiff had been cautioned by defendants, and it was found that the defendants were not aware that the mare was accustomed to kick so as to be dangerous when driven in single harness, in the circumstances under which she injured the plaintiff, namely, when she did not have the lines under her tail. They had therefore no occasion to give a broader caution than they did. The fact that the defendants are found to have been in the habit of using a kicking strap with the mare when she was driven in single harness before they let her to the plaintiff, and that they did not furnish the plaintiff with such strap, cannot be considered as equivalent to a finding that the mare was accustomed to or had the habit of kicking when she did not have the lines under her tail, for, if it did, the verdict would have to be held fatally defective, as being contradictory. The use of the kicking strap, under this finding, must be regarded as a precaution against the vicious habit which the jury found she had, not as against one she had not; and, under the warning given the plaintiff, the court cannot say, as a matter of law, that the failure to furnish a kicking strap was negligence on the part of the defendants for which they are necessarily liable. We hold, therefore, that the plaintiff was not entitled to judgment upon the verdict as it was returned. By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.