Taylor v. Seil

Dodge, J. 1. Appellant’s principal contention is that the trial court ought to have found respondent’s negligence established as matter of law, and either directed the jury to find him negligent, or set aside their finding to the contrary. The substance of the facts disclosed by the evidence is set forth in our statement of facts. We are not prepared to say that no reasonable mind could reach a conclusion of ordinary care therefrom. It certainly is not unusual among farmers that boys of seventeen are intrusted with firearms. Nor is it obvious negligence to intrust the carrying of an unloaded gun to a boy of six or seven. Further than this the conduct [35] of respondent did not go, at least according to evidence which 'tide jury might have believed. We therefore cannot hold that the court should have taken from the jury the question of defendant’s negligence, nor that it should have set aside their verdict thereon. Counsel-further urges, however, that respondent was guilty of negligence, in law, because his acts were prohibited by express statutes, namely, secs. 4397, 4397a, Stats. 1898. The first of these provides, so far as material to the discussion: “Any dealer or other person who shall sell, loan, or give any pistol or revolver to any minor shall be punished,” etc. It suffices to point out that the gun in question was neither a pistol nor revolver, and therefore not within this criminal statute, entitled to strict construction. The latter section denounces punishment on use or possession of “any toy pistol, toy revolver, or toy firearm.” We find no proof that the rifle in question was a toy. It is described as a 22-caliber Stevens rifle. It is shown to have been used for hunting and killing game, and to have been capable of killing a human being. With nothing else in the way of proof, we cannot think it established that this was a toy firearm, within the strict words of the statute. 2. Error is assigned because of omission to give to the jury any definition of the meaning, in law, of the expression “want of ordinary care,” in submitting a question whether defendant was guilty thereof. ' Uo request, either written or oral, for any instruction defining this expression, was made. We have very recently reiterated the rule that an appellant waives any mere omission to instruct upon any subject by failure to present request for such instruction, and that in writing, and ordinarily will not be heard to assign error for such omission. Our recent review of that subject has been so complete that we need not go over it again. Hacker v. Heiney, 111 Wis. 313, 87 N. W. 249; Schroeder v. W. C. R. Co. 117 Wis. 33, 41, 93 N. W. 837; Barton v. Bruley, [36] 119 Wis. 326, 96 N. W. 815; Cupps v. State, post, p. 504, 97 N. W. 210. Doubtless there are -instances where this court has yielded the exact enforcement of this rule in order to correct what appeared very obviously to be the result of misapprehension and confusion of the jury, whether to the promotion of orderly procedure or of justice, in the long run, may be questionable. Certainly only in clear and extreme cases can that be warranted. The present record presents no reason to doubt that the jury understood the expression “want of ordinary care,” and answered the question intelligently. Appellant cannot now be Heard to assign error upon the failure of the trial court to do what he did not request be done. Certain alleged errors in the instructions upon proximate cause and damages need not be considered, for the jury never reached either of those subjects. We find no assignment of error which can be sustained. By the Court. — Judgment affirmed.