Otis v. Town of Janesville

Citation2 N.W. 783,47 Wis. 422
CourtUnited States State Supreme Court of Wisconsin
Decision Date14 October 1879
PartiesLILLIAN P. OTIS, BY HER GUARDIAN, RESPONDENT, v. THE TOWN OF JANESVILLE, APPELLANT.

47 Wis. 422
2 N.W. 783

LILLIAN P. OTIS, BY HER GUARDIAN, RESPONDENT,
v.
THE TOWN OF JANESVILLE, APPELLANT.

Supreme Court of Wisconsin.

Filed October 14, 1879.


Appeal from circuit court, Walworth county.

[2 N.W. 783]

Cassoday & Carpenter, for respondent.

Winans & McElroy, for appellant.


ORTON, J.

The injury of the plaintiff occurred by being thrown from a conveyance driven and managed by another, whose negligence, if any there was, must be imputed to her. Prideaux et ux. v. The City of Mineral Point, 43 Wis. 513. Such negligence, therefore, was a very material question in the case, and should have been very clearly and fully submitted to the jury, by instructions not liable to any doubt or uncertainty. The distinction between slight negligence and slight want of ordinary care, may be clear enough to a lawyer, but not so clear to those not educated in the law.

If slight negligence of the plaintiff would prevent a recovery, then he would be held to the highest degree of care, when, in law, he is chargeable only with the exercise of ordinary care, and is prevented from a recovery by the want of it, in any degree however slight. The jury were properly instructed that slight negligence would not prevent a recovery, and the want of ordinary care would do so. Cremer v. Town of Portland, 36 Wis. 92;Hammond v. Town of Mukwa, 40 Wis. 35. But the learned judge omitted to qualify this general instruction

[2 N.W. 784]

with the word slight, leaving it to be inferred that the entire absence of ordinary care, or the want of the highest degree of ordinary care only, would prevent a recovery, and at the same time added to the qualification that such neglect to use ordinary care “contributed in any material degree to produce the injury.”

This qualification alone, although well calculated to confuse the jury, and liable to be understood as meaning that such want of ordinary care must be something greater and more material than slight, to prevent a recovery, might not be strictly erroneous; but, when so given, in connection with the charge that slight negligence of the plaintiff would not prevent a...

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