Lynch v. Town of Waldwick

Dodge, T. Appellant’s principal contention is that the evidence conclusively establishes contributory negligence either on the part of the plaintiff or on the part of Mr. Barry, who was driving the team. FTegligence and contributory negligence are essentially and peculiarly questions for the jury. They involve not only a decision upon the credibility of the testimony, and deduction therefrom as to the physical facts and the actual conduct, but also an inference of negligence or due care from such facts and conduct. Warden v. Miller, 112 353 Wis. 67, 70. In tbe consideration of such contention as now made by appellant, of course tbe evidence must be given its utmost force in favor of tbe plaintiff, and all reasonable inferences must be indulged in bis favor. Only wben tbis court can say tbat there is no conflict of credible evidence as to tbe facts, and tbat from those facts, taken most adversely to tbe appellant, no reasonable mind could draw tbe inference of ordinary care, can such contention be sustained. We do not feel tbat such a situation is here presented. There was evidence tbat tbe team was being driven carefully and slowly; that tbe engine itself was so constructed, balanced, and situated as to render its capsizing improbable; tbat it bad been subjected to various experiments in course of the journey, all tending to allay any fear of such event. Tbe plaintiff did not forego all precautions, but, realizing tbat tbe place in question was a difficult one, be withdrew from a position of special proximity to tbe engine, and, doubtless partly to lessen tbe load and partly also to be further from tbe engine, got out of tbe sleigh and walked behind. With tbe team thus moving and apparently under control, we cannot say tbat tbe inference is beyond question tbat be, as an ordinarily prudent and intelligent man, should have foreseen tbe probability of tbe engine tipping over so suddenly as to injure him. Tbe conduct óf tbe ordinarily prudent man is quite as much within tbe experience and knowledge of jurymen as of courts, and their decision has been subjected to' criticism before tbe trial judge, who has refused to disturb it. We cannot feel justified, upon tbis record, in’reaching a different conclusion. Appellant also assigns as error refusal of an instruction tbat, “if tbe plaintiff placed himself in a’ position of known-danger, wben be might have .avoided it, and while there received tbe injury of which be complains, be was guilty of negligence, although tbe danger may have been caused by tbe negligence of tbe town authorities.” Tbe instruction in fact given was that, if be failed to exercise such care as tbe great 354 mass of mankind ordinarily exercise under tbe same or similar circumstances, he could not recover. Doubtless it would have been entirely proper fox the coru’t to have instructed the jury that a knowledge of danger was one of the surrounding circumstances and'conditions which would require a higher measure of care or precaution than if such danger were not known; but under familiar rules no error can be predicated upon the refusal of a requested instruction, unless it be complete and accurate in itself, so that it can be given in the words of the request. Sec. 2853, Stats. 1898; Schroeder v. W. C. R. Co. 117 Wis. 33, 42, 93 N. W. 837; Taylor v. Seil, 120 Wis. 32, 97 N. W. 498. This requested instruction lacks two important qualifications essential to its accuracy: First, that the injury did actually result from the conduct of the plaintiff; and, secondly, that an ordinarily prudent man should, under all the circumstances, have reasonably anticipated some injury as the result of such conduct. Mere carelessness does not prevent recovery by the plaintiff, unless it be negligence; that is, unless an ordinarily prudent man would have anticipated the probability of some injury. Rhyner v. Menasha, 107 Wis. 201, 208, 83 N. W. 303. Nor can it defeat the action unless it did in fact contribute. Cummings v. National F. Co. 60 Wis. 603, 616, 18 N. W. 742, 20 N. W. 665. No error was committed in refusing the request. By the Gourt. — Judgment affirmed.