Brunette v. Town of Gagen

WiNsuow, J. Upon the facts found by the special verdict there can be no doubt of the plaintiff’s right of recovery ; hence the only questions for serious consideration are whether the evidence was sufficient to sustain the findings, and whether any errors of law were committed in arriving at those findings. Upon the first question we deem it sufficient to say that, after reviewing the evidence, we are satisfied that there was ample evidence upon which the findings could be properly based. Proceeding to the second question, several alleged errors must be discussed. 1. It is said that the court gave the jury general instructions upon the duties, obligations, and liabilities of the parties, and that this was error, because a special verdict only was to be rendered, citing Ward v. C., M. & St. P. R. Co. 102 Wis. 215. It may be doubtful whether the charge is open to the criticism made, but, conceding that it is, the objection cannot prevail, because no objection or exception was preserved to those parts of the charge complained of. 2. In submitting the seventh question, as to slight want of ordinary care by the plaintiff contributing to the accident, [622] the court charged, in substance, that this question should be carefully read and fully understood, and that the court must be informed by the verdict whether the plaintiff contributed to the accident by slight want of ordinary care, which in this case would be negligence on her part. It is said that this charge, in legal effect, instructed the jury as to the effect of their answer upon the plaintiff’s right of recovery, and also that it is erroneous in not defining what is meant by ordinary care. ¥e think the objections are somewhat hypercritical. To tell the jury that want of ordinary care constitutes negligence is certainly frequently done, and to hold such a statement to be prejudicial error would be imposing entirely too close and technical a rule upon the trial courts. It would have been better to have defined ordinary care, but, in the absence of a request for a definition, we cannot say that it is error to omit to define the term. 3. In submitting the eighth question, the court said, in substance, that the question related to the physical condition of the place of accident; that all travelers are expected to use ordinary care in passing along a street by day. or by night, and have a right to rely upon the street being in a reasonably safe condition to persons exercising ordinary care; that the plaintiff had a right to assume that the sidewalk was in a reasonably safe condition for her to pass over in the exercise of ordinary care; so that the question should be answered “Yes” or No,” according to the fact. The exceptions to these instructions were that they were in no manner applicable to the question and failed to inform the jury of the law applicable to the facts involved in the question. While it must be admitted that the instructions are subject to justifiable criticism in not being confined to the fact to be found, we think the exception is too broad to be available. The jury are certainly informed, in substance, that the town should keep the street in a reasonably safe [623] condition for use by persons exercising ordinary care, and it cannot be said that the instructions are in “ no manner ” applicable to the question. 4. As to the ninth question, it is objected that it is double, and that proximate cause was not properly defined. It may well be doubted whether this question was in .any respect necessary. The jury had found an actionable defect in the street caused by the chairman of the town more than a week prior to the accident, by which the plaintiff was injured while exercising ordinary care as a traveler, and the argument would be strong that no further finding of negligence was necessary. Certainly, no question of proximate cause was left, because, when a traveler exercising ordinary care suffers injury by stepping into a defect in the sidewalk, which was made by the town officials, or had existed so long as to charge them with notice and the duty to repair the same, such officials cannot be heard to say that they did not anticipate such an occurrence. So, if there was error in the instruction as to proximate cause, it was harmless. As to the alleged double character of the question, it might be with some reason said to be double if the .answer had been in the negative; but, when answered in the affirmative, there is no duplicity of which the defendant can complain, because, in order to so answer it, every juryman must necessarily say that there was negligence which pr'oximately caused the injury; the two elements cannot be severed. 5. It is contended that the verdict is excessive, but we are unable to say so from the evidence. Other minor errors are alleged, but we have found nothing which can be deemed prejudicial or which requires treatment. By the Court.— Judgment affirmed.