Shortle v. Sheill

Owen, J. A question is raised as to whether we have before us a bill of exceptions certified to contain all of the evidence. Such a certificate was absent from the bill of exceptions first transmitted to this court. After the receipt of the record here, the bill of exceptions was transmitted to the circuit court for correction. Under date of May 15, 1920, a new certificate was attached thereto, by which it was certified that the bill of exceptions contains all of the evidence given on the trial of said action. The record was again returned to this court and filed on the 21st day of May, 1920. On May 27, 1920, the trial judge filed with the clerk of the circuit court a paper in the form of a certificate, wherein it is stated that the bill of exceptions signed by him on May 15th did not contain two certain exhibits offered upon the trial of said action, and did not contain the decision of the court that the negligence of the defendant which proximately contributed to the injury appeared by the undisputed evidence. The missing exhibits mentioned are attached to the certificate. This certificate, with attached exhibits, was transmitted to this court as a supplemental return and filed on the 29th day of May, 1920. These latter documents did not become any part of the record in the case and cannot be considered. Demier v. Durand, 15 Wis. 580. But even if they could be received as impeaching the integrity of the former bill of exceptions, the certificate itself points out the defects in the bill of exceptions, which appear to be of very little significance. The exhibits mentioned [56] consist of a plat and photograph of the vicinity of the accident, -Which was fully described by witnesses who testified. Furthermore, the ruling of the court upon the' question of defendant’s negligence appears plainly from the bill of exceptions as certified. We think, therefore, we have before us a properly certified bill of exceptions. It will be noted that the special verdict, as set forth in the statement of facts, contains no finding upon the question of defendant’s negligence. It is strenuously urged by appellant that because of this omission the special verdict does not constitute a sufficient basis for the judgment. It appears from the record, however, that this question was not submitted to the jury because the court held as a matter of law that the defendant was guilty of negligence which proximately contributed to the accident. It would have been much better practice if the question had been included in the special verdict and answered by the court if the court considered that the question was not one for the jury under the facts and circumstances of the case. A cleaner and better record would result from this practice and would leave no room for the thought that*the question of the defendant’s negligence had not been the subject of judicial determination. In view of the fact, however, that it plainly appears from the record that the question was determined by the court as a matter of law, for which reason it was not submitted to the jury; it does not constitute basis for prejudicial error. Passing the question of whether the court was warranted in thus disposing of the issue of defendant’s negligence, we think there was no Justification for changing the answer to question 2 of the special verdict from “Yes” to “No.” We think that the jury’s answer to the question, by' which it found that plaintiff’s deceased husband was guilty of negligence which proximately contributed to the accident, is supported by the evidence, and this independent of the question [57] of whether he violated any statute law or ordinance in driving west of the monument as he proceeded north on Tenth street. It appears that traffic going north customarily went east of the monument, and that one driving west on Grand avenue would not ordinarily anticipate that a vehicle would be going north on Tenth street to the west of the monument. The evidence further shows that the traffic on Grand avenue and Tenth street was usually heavy during the time of day at which the accident occurred. According to the testimony of witnesses the deceased drove west of the monument across this busy thoroughfare at a brisk pace, looking neither to the right nor to the left, but straight ahead. This circumstance justifies the inference that he had renounced responsibility for his own safety and placed the burden thereof upon those who were using the street concurrently with him. It may be conceded that even had he looked and seen the defendant coming towards him he could not have avoided the collision. He would, however, have been apprised thereof and saved himself from falling from his elevated position. Whether his conduct amounted to such care and prudence as the great mass of mankind usually exercise in the same or similar circumstances is a question upon which reasonable minds might arrive at different conclusions, and was eminently a question for the jury. There is no yard-stick by which it may be determined whether any given action amounts to ordinary care. The decision must of necessity be a matter of human judgment. This is signally true in automobile accident cases. Whether the conduct of one charged with responsibility for an automobile accident amounts to negligence is in the vast majority of cases a question calling for the exercise of human judgment and one upon which men are very likely to differ. In these days, when automobiles are in well-nigh universal use, who is better qualified to pass final judgment upon such matter [58] than a jury, who can apply to the facts of the case a collective and varied experience? The daring, the reckless, the moderate, the careful, and the timid driver as well as the pedestrian, and he who still clings to Old Dobbin, all find their way to the jury box, and the decision of the jury upon these questions reflects a judgment founded upon varied views, sympathies, and experiences which a court can disregard only when palpably unsupported by evidence or inconsistent with law. A court should be reluctant to brush aside the verdict of a jury rendered upon such a question for no other reason than that such views do not coincide with the views entertained by the presiding judge. In the instant case the jury considered the attitude and conduct of the deceased as it appeared in evidence, and, uninfluenced by any improper considerations so far as we are able to determine, reached the conclusion that he failed to exercise that degree of care for his own safety which would have been exercised by men of ordinary care and prudence under the same or similar circumstances and that such failure proximately contributed to the accident. That the verdict is erroneous is by no means subject to demonstration. To set it aside merely illustrates the fact that human judgments differ. It is not inconsistent with law, reflects the solemn judgment of the jury upon the conduct of the deceased as disclosed by the evidence, and it must stand. By the Court. — Judgment reversed, and cause remanded with directions to enter judgment dismissing the complaint.