Gingrass v. Harvey

Maeshall, J. As we understand the position of counsel for appellant there is no question but that the findings are [671] .all supported by tbe evidence, except tbe one on tbe subject ■of contributory negligence. There are four assignments of •error, three of which depend on whether the evidence established such negligence as matter of law. Appellant relies to support the three assignments mentioned on Martin v. Bishop, 59 Wis. 417, 18 N. W. 337, and Drevis v. Woods, 71 Wis. 329, 37 N. W. 256. We shall not, to any great extent, analyze those cases. They do not seem to be controlling. In the first no negligence was claimed ■on the part of the defendant, except that of operating the engine near grain stacks on a very hot dry day with the wind blowing very hard toward the stacks from the direction of the engine. The circumstances were such that the stacks caught fire in a few seconds after the engine was started. The jury found that plaintiff knew it was dangerous to operate the engine under the circumstances and that the machine was set under his direction. In the second case, under somewhat different circumstances though similar to the first case as regards the location of the engine and the direction of the wind, to this case, in that an appliance for lessening the danger from flying sparks was not properly used, it was held that the question of contributory negligence was for the jury. Here, as seen, the danger was not as in Martin v. Bishop, supra, the ordinary hazard of using a threshing-machine engine near highly combustible matter with the wind blowing toward the latter from the former. The risk was special in that there was the extra hazard caused by a defective spark-arrester, which was known to appellant but not known to respondent. It is not clear that there would have been any hazard likely to deter an ordinarily careful man from proceeding with the work, as was done, had it not been for such defective appliance. The special element of danger was one not liable to attract the attention of a person circumstanced as respondent was, unless he observed the engine operating in the nighttime. Such element produced the mischief. On [672] the whole it seems quite clear that the court did uot err in. sending the question of contributory negligence to the jury. The only other error assigned is that the court refused to-give to- the jury an instruction duly presented in respect to the burden of proof being on the plaintiff to establish the .affirmative of the first, second, and third questions, and the amount of damages in answer-to the fifth question. As no point is made now, nor could well be made, but that the answers given to such questions were required by the evidence, it is manifest that there was no prejudicial error committed in refusing the instruction. Harmless errors however numerous they may be do not furnish any legitimate basis-for a reversal. Such is the uniform rule of the court and the-statute. Sec. 2829, Stats. (1898). By the Court. — The judgment is affirmed. Oassoday, O. J., took no part.