Schumann v. City of Kaukauna

SiebecKee, J". It is contended that the court erred in refusing to give the requested instructions set out in the foregoing statement. The argument is that the instructions given on the question included in the requested instructions are so indefinite and uncertain that the court failed to inform the jury that if the crack or opening complained of was no more than was necessary for operating the drawbridge then it did not constitute a defect. It is apparent that the instructions given on the point of insufficiency or defect at the place complained of were quite general and that the requested instructions were appropriate and would have been of aid to the jury in their deliberation on the case. Yet can it be said that the error of refusing the requested instructions prejudiced the defendant so as to require reversal of the judgment ? An examination'of the record does not convince us that a result more favorable to the defendant would have been arrived at by the jury had the instructions been given. Under the statutes, secs. 2829 and 3072™., Stats., “ . . . all irregularities and errors [shall] be deemed inconsequential, in the absence of reasonably clear indications that the adverse party was prejudiced thereby.” Oborn v. State, 143 Wis. 249, 126 N. W. 737; Wiese v. Riley, 146 Wis. 640, 132 N. W. 604; Solberg v. Robbins L. Co. 147 Wis. 259, 133 N. W. 28. The contention is made that the jury was left to conjecture whether or not it was the crack between the draw and approach, or the unevenness in the surfaces between the draw and the approach, or the absence of a flap over the crack that constituted the defect. The jury, under the evidence, was re [399] quired to determine whether the condition of the crack, under the surrounding conditions of slope and unevenness of the floor surfaces on each side, made the bridge defective and dangerous to persons using it to drive teams thereon. The inquiry pertains to a matter concerning which the jurors’ general knowledge would enable them to form an intelligent opinion, and explanatory instructions by the court could have aided them but little in their deliberation. The requested instruction whereby the court was asked to direct the jury that the evidence of having a covering over the crack was insufficient to support a finding that such covering was practical or that any had been used on bridges was properly refused under the state of the evidence in the case. These were jury questions in the light of the evidence in the case. We are of the opinion that the court properly submitted the question of plaintiff’s contributory negligence to the jury. There is no reversible error in the record. By the Court. — The judgment appealed from is affirmed.