Panoff v. Chicago, Milwaukee & St. Paul Railway Co.

MaRshaxl, J. ’ This court did not intend to hold in Tidmarsh v. C., M. & St. P. R. Co. 149 Wis. 590, 136 N. W. [101] 33T, that the statute, in the, particular terms thereof, in such a case as this, requires a finding as to whether the fault of the defendant was greater than that of plaintiff and contributed to produce the injury in the greater degree. The 'effect of tjre decision is that the jury should find the fact; but no particular collection of words was held' to be requisite thereto. Any which, in- the light of other findings and the instructions given by the court, fairly shows that the jury definitely passed upon the matter, is sufficient. Here there was a specific finding of actionable negligence of the defendant proximately contributing to the injury, also a specific finding of want of ordinary care of the plaintiff so contributing, followed by a finding in plaintiff’s favor of this: “If you find that mutual fault of the defendant and -plaintiff was the 'proximate cause of the injury, was the fault of the defendant greater ?” substantially following the suggestion in Jensen v. Wis. Cent. R. Co. 145 Wis. 326, 128 N. W. 982, and the minds of the jurors were directed to the precise point of inquiry by this instruction: “In answering this question yoú are to determine whose fault was the greater contributing cause of the injury'; the fault of the plaintiff or that of the defendant.” “You are to determine in answering this question whose fault was the greater contributing cause of plaintiff’s injury.” In the light thereof the jury could not well have otherwise found in answering the question than that want of ordinary care of the defendant contributed to produce the injury and in greater degree than like fault of the plaintiff. Had the learned circuit judge more fully appreciated the effect of the quoted instruction in connection with the question, he would have observed that the trial in the civil court would stand the test of Tidmarsh v. C., M. & St. P. R. Co., supra. By the Court. — The judgment is reversed, and the cause remanded with directions to affirm the judgment of the civil court;