Baxter v. Krainik

• Citation: 105 N.W. 803,126 Wis. 421
• Parties: BAXTER v. KRAINIK.
• Decision Date: 12 December 1905
• Court: United States State Supreme Court of Wisconsin

126 Wis. 421

105 N.W. 803

BAXTER

v.KRAINIK.

Supreme Court of Wisconsin.

Dec. 12, 1905.

Appeal from Circuit Court, Langlade County; John Goodland, Judge.

Action by Frank Baxter against Wenzel Krainik. From a judgment for plaintiff, defendant appeals. Reversed.

This action is brought to recover damages caused by the alleged negligence of the defendant. The complaint is to the effect that the plaintiff was a farmer, and on August 22, 1903, was engaged in cutting and harvesting grain upon the 80 acres of land described, with a self-binder and heavy team of horses; that the premises abut upon and are bounded on the east by a highway running north and south; that the plaintiff was driving the machine easterly on said premises toward said highway and near the fence between the premises and the highway; that the defendant was driving on said highway from the south in a northerly direction toward the plaintiff, with a team and light wagon, and having on his person and in his possession a revolver; that the plaintiff proceeded with due care on his course, and had reached said fence between the highway and said premises, and was turning the corner south, when the defendant reached a point in said highway opposite to plaintiff and in close proximity to him and his said team; and while in such position said defendant, knowing the situation of the plaintiff, and while said machine was in gear, without any warning to him, negligently, carelessly, and without the exercise of due care, in utter disregard of the plaintiff's rights, fired said revolver and thereby caused the plaintiff's team to become frightened, unmanageable, and to run away; that by reason of said negligence of the defendant the plaintiff was thrown from the seat of said machine forward and down onto the cutter bar; and that his left arm was mangled and torn so that it had to be amputated, and his lower limbs were cut and lacerated, and his body bruised and injured, whereby he suffered great damages, for which he prayed judgment. A demurrer to the complaint having been overruled, the defendant answered by way of admissions, denials, and counter allegations. At the close of the trial the jury returned a special verdict to the effect (1) that the plaintiff was injured by being thrown from a binder in consequence of the team running away on August 22, 1903; (2) that the running of said team was caused by the discharge of a revolver in the hands of the defendant; (3) that such revolver was fired intentionally by the defendant; (4) that the firing of such revolver was negligence on the part of the defendant; (5) that such negligence of the defendant was the proximate cause of the plaintiff's injury; (6) that the plaintiff had sustained damages by reason of such injury in the sum of $1,750. From the judgment entered upon such verdict for the amount stated in favor of the plaintiff, the defendant brings this appeal.T. W. Hogan, for appellant.

Foster & Morson, for respondent.

CASSODAY, C. J. (after stating the facts).

It is claimed that the third, fourth, and fifth findings of the jury, to the effect that the revolver was fired intentionally and negligently by the defendant, and that such negligence was the proximate cause of the plaintiff's injury, are not sustained by the evidence, and hence that the court erroneously refused to direct a verdict in favor of the defendant, or to set aside the verdict and grant a new trial. There is testimony on the part of the defendant tending to prove that the defendant never owned a revolver and never carried or shot a firearm before; that the revolver in question was a self-acting, 32-caliber revolver and belonged to his nephew, who some weeks before had left it at a gunsmith's for repair, where it remained until the day in question, when, at the request of his nephew, he got it and left it at a hardware store to be supplied with cartridges that would fit the same; that the defendant took the revolver from the store,...