Sharkey v. Shurman

Rosenberry, J. The only question raised upon this appeal is whether or not there is evidence sufficient to sustain the finding that the driver was guilty of a lack of ordinary care in doing as he did at the time the thill fell down. The verdict having been approved by the trial court, it must be sustained if there is any credible evidence to support it. It appears that the first event in the series of events which resulted in the injury of the plaintiff was the falling down [352] of the thill. The jury by its verdict negatived negligence on the part of the liveryman in letting out the rig and of the defendants Shurman in using the rig in the condition in which it was. Whatever was done by the driver was done by him in the presence of immediate and great danger. In his effort to stop the horse, the line, which the jury found was in a reasonably safe condition, broke. While the line was found wound around the wheel, there is no evidence to show that the line broke after the driver jumped. We then have the situation of the driver on the wagon, with the thill fastening on the right side loose, one line broken, and the horse proceeding down the street at a rapid rate of speed. The court instructed the jury as follows: “You will also consider that when one is suddenly put in a position of danger requiring one to act quickly and determine his course of conduct in order to avoid injury to others or to himself, it is not necessary that he take the course that in retrospect seems would have been wisest or safest. If the boy exercised his own judgment as to the best means of avoiding injury, and acted upon it, that is sufficient, although it now seems likely that had he acted otherwise he might have avoided injury to the plaintiff.” This is a correct statement of the law, but respondent contends it is not applicable for the reason that the dangerous situation in which the driver found himself was of his own creation. We find no evidence in the record to sustain that allegation. In fact the verdict of the jury plainly negatives that conclusion. The dangerous situation arose when the thill fell down. The driver was not to blame for that. While it may be that had the driver clung to the single line he might have avoided an injury to the plaintiff, such conduct might well have resulted in injury to someone else as well as to himself. We find nothing in the record to show that the driver did not do what an ordinarily prudent person in the same circumstances would have done. The jury have found no negligence on the part of the defendants Shurman in using the thill in the condition in which they [353] received it from the liveryman. The dangerous situation having arisen without negligence either on the part of the liveryman in Jetting out the rig or the defendants Shurman in its use, we find no evidence upon which the finding that the driver was negligent in doing as he did at the time of the accident can be based. It does not appear that even had the very highest”degree of skill and care been used an accident would have been prevented. It is not sufficient to say that it might have been prevented. A finding of negligence cannot rest upon mere conjecture. Hyer v. Janesville, 101 Wis. 371, 77 N. W. 729. By the Court. — Judgment reversed, with directions to' dismiss the complaint.