Ennis v. M. A. Hanna Dock Co.

Marshall, J. Tbe. appeal presents tbe question of whether there was evidence tending to prove that appellant did not exercise ordinary care in respect to respondent and whether there was evidence tending to establish efficient want of ordinary care on respondent’s part. Tbe two questions mentioned may well be answered without discussing, at length, tbe evidence. They depend upon [658] whether negligence of the defendant and contributory fault of the plaintiff, or either, were reasonably inferable from evi-dentiary facts, which the jury doubtless found to exist, since there was room in the evidence therefor. The ultimate facts as to negligence more often than otherwise are dependable upon circumstantial rather than direct evidence. Sometimes proof of a particular fact establishes the negligence, in case of there being any, because the act of commission or omission, under the circumstances, is negligence as matter of law. Then the act being conclusively established, there is nothing for a jury to do. But where, whether there was negligence or not is dependable upon inference of fact from evidentiary circumstances, established by direct evidence, or conceded, in general, the question is for the jury. It is only where there is, obviously, no conflict in the permissible inferences from the evidence, circumstantial and direct, that the question is for the court. A reading of the statement of facts will be sufficient to show that this is not a case of single permissible inference as to either of the suggested propositions. The most attention was paid by counsel, particularly on the oral argument, to the fact that respondent did not proceed thoughtfully as to the condition of the surface over which he was traveling and as to his surroundings, instead of permitting his attention to be so fully diverted by the purpose of his trip. But, in the judgment of the court, it is not wholly unreasonable to conclude that he acted as prudently as the majority of mankind'would, ordinarily, under the same or similar circumstances,- — that it was not wholly unreasonable to assume that the average person on a dark night, absorbed in the thought of reaching quickly, and without being discovered, a person engaged in wrongdoing, — as one stealing coal on a dock, — thinking as he would be quite liable to that such wrongdoer upon apprehending imminent danger of being detected would flee, — would not, probably, carefully determine at each step the condition of his pathway or pay any particular attention thereto. [659] Sometimes a person is bound to think with reference to' where he is about to place his feet, but, generally speaking, one’s attention may be diverted, even by small circumstances, so as to render him- excusable by the standard of ordinary care for stepping into a hole or colliding with an obstruction which attention would readily disclose, and' even with which he is perfectly familiar. Crites v. New Richmond, 98 Wis. 55, 73 N. W. 322; Collins v. Janesville, 111 Wis. 348, 356, 87 N. W. 241, 1087; Murphy v. Herold Co. 137 Wis. 609, 119 N. W. 294. Without further discussion we may well close this case by saying that it is the opinion of the court that the record does not disclose any good ground for interference with the trial court’s refusal to disturb the verdict, as contrary to the evidence. By the Court. — The judgment is affirined.