Mead v. City of Rickland Ctr.

• Decision Date: 15 April 1941
• Citation: 297 N.W. 419,237 Wis. 537
• Parties: MEAD v. CITY OF RICKLAND CENTER.
• Court: Wisconsin Supreme Court

237 Wis. 537

297 N.W. 419

MEAD

v.CITY OF RICKLAND CENTER.

Supreme Court of Wisconsin.

April 15, 1941.

Appeal from a judgment of the Circuit Court for Richland County; S. E. Smalley, Judge.

Reversed.

Action by Catherine Mead against the City of Richland Center, commenced November 9, 1939. From a judgment for the defendant entered April 20, 1940, the plaintiff appeals. The facts are stated in the opinion.Franklin E. Fogo, of Richland Center, for appellant.

Loren L. Brindley, of Richland Center, for respondent.

FOWLER, Justice.

The action was brought under sec. 81.15, Stats., to recover damages for injuries alleged to have been caused by a defective sidewalk. Trial was had to a jury. The case was submitted upon a special verdict. The first question of the verdict inquired whether the sidewalk at the place of injury was “in an unsafe and defective condition.” This question was answered “No.” The court had instructed the jury that the other questions need not be answered if the first question were so answered. On this verdict judgment was entered for the plaintiff. The other questions were not answered.

Two errors are assigned: (1) The evidence does not sustain the answer returned by the jury; and (2) the court erred in instructing the jury respecting their duty to agree.

[1] (1) As to the answer to question (1) we will only say that the evidence presented a jury question.

(2) The instructions of which the plaintiff complains occurred when the jury was before the court for further instructions after the case had been submitted to them. After being out from 11:45 A. M. to 8:50 P. M. the jury came into court of their own motion and asked for further instructions as to the meaning of the phrase “unsafe and defective.” Nothing occurred at this time to which exception is or could reasonably be taken. At 10:10 P. M. the trial judge of his own motion called the jury into court and stated to them that he had called them in to “see if there was anything the court could do to aid them in any way,” and said further, “without telling me what your differences are, tell me how near you are to being agreed.” The foreman answered: “we voted eight to four.” The judge then said: “Well, you are not so far from being agreed then. You understand that if ten or more of you are agreed as to the answers to be made to the questions you can return a verdict. You have deliberated together have you?” The foreman answered “Yes.” The court then said further: “In an honest effort to try to get together, and harmonize your views so that you can agree on a verdict? It is the duty of jurors, of course, to agree on a verdict, to return a verdict. That is what we have juries for. And while no juror can be asked or expected to surrender his or her honest convictions based on the evidence, still you should be willing to listen to the views of one another-those that do not agree with you-and the views they have of the evidence, and see whether or not the view that eight of you have for instance possibly might be better than that of the four who are not in agreement with them. In other words the four who do not agree with the eight might well consider whether their judgment is better than the eight who have listened, I take it, just as carefully to the evidence and have the same desire to return a verdict such as the facts warrant as you have. Do you think Mr. Foreman that by further deliberation it is probable that you can get together?” To this the foreman answered: “Well we can try. We have been deadlocked for quite a while.”

The judge then interrogated the jury at considerable length and in considerable detail, and ascertained that the jury had “taken a good many ballots,” and that the jury once stood nine to three but “went back to eight to four.” The foreman stated that “we could agree on question 4 (relating to contributory negligence) but we can't agree on question 1.” After a bit more colloquy the judge said to the jury:

“Well I say, Members of the Jury, it is your duty to agree on a verdict if it is possible to do so. It is important to the parties. If you do not decide this case why it means just another jury will have to be called in all probability later, and the parties will have to go through the same procedure again, and probably will have no more intelligent jury than we have now. So it is your duty to strive very earnestly to see if you cannot agree on a verdict that will end the litigation. As I say the Court is not telling you that any juror should surrender his or her honest conviction based on the evidence, but they should be willing to listen very carefully to all views of the other jurors; and those in the minority might well consider, it seems to me, whether they are warranted in standing on their views as against that of their fellow jurors, who, as I say, have been just as anxious to render a just and true verdict as the minority has.

“I think I will ask you to-while it is getting cold here, and I understand they cannot heat up this building under the heating arrangement they have. The heat dies down in the evening and does not come up again til morning, and there is nothing we can do about it, so it may make it a little uncomfortable for you, but I think it is my duty to make you deliberate a little further. And if you cannot answer question 1 but can answer question 4 answer question 4 and 5. But it is your duty to answer...