Duthie v. Town of Washburn

Decision Date16 March 1894
Citation87 Wis. 231,58 N.W. 380
CourtWisconsin Supreme Court


Appeal from circuit court, Bayfield county; J. K. Parish, Judge.

Action by Johanna Duthie against the town of Washburn. From a judgment for plaintiff, defendant appeals. Reversed.Warden & Alvord and J. J. Miles, for appellant.

Henry Textor, Tomkins & Merrill, and Lamoreux, Gleason, Shea & Wright, for respondent.


This action was brought by the plaintiff against the town of Washburn to recover damages for her personal injuries, caused by the insufficiency and want of repair of a certain cross walk in said town. The defendant, by answer, put in issue the facts of the injury, the notice to the town, and the filing of a statement with the town clerk; and then alleged that, if there was such a defect and want of repair for which it is liable in this action, the same was caused by one A. C. Probert, and that he is primarily liable therefor. The following facts appear to have been established by the evidence: The plaintiff, a woman about 43 years of age, while walking along the cross walk over Central avenue in said town, in the evening of the 21st day of October, 1889, fell into a hole which the town had negligently left to remain in said cross walk for over two weeks, and was very seriously injured. The town sought to prove that the hole in which the plaintiff fell was not in said cross walk, but was near the corner of a block near by at the end of the cross walk, and had been left there, unguarded, by the said A. C. Probert, while excavating for a catch basin, under a contract with the town, and that, therefore, the said Probert was primarily liable for the defect and the injury of the plaintiff; but this was not proved. The jury found a verdict for $2,500 damages in favor of the plaintiff and against the town, and that the town was primarily liable, and that the said Probert was not.

We think that the verdict was warranted by the evidence, and we regret that we are compelled to reverse the judgment thereon by reason of errors in the instructions of the court to the jury, which are too important and material to be disregarded, and they must have influenced and misled the jury, if a jury could be influenced and misled by the charge of the court in such a case.

1. In one part of the charge the court said: “If you find there was negligence on the part of the plaintiff, she cannot recover; and in determining this fact you will settle in your minds whether she used such care, caution, and prudence as a person would ordinarily use under the same circumstances.” In the next sentence the court repeated, “such care as people ordinarily use under the same circumstances.” This language does not express the care the plaintiff was required to use by any authority. She was required to use “ordinary care.” It must be “such care as persons of ordinary care and prudence observe in their business,” or “such care as the great mass of mankind, or the majority, observe in the transactions of human life.” Dreher v. Fitchburg, 22 Wis. 675. This language, which this court held in that case was a full expression of ordinary or common care, shows at a glance the insufficiency of the instruction. The care that “a person (any person) would ordinarily use,” or “that people ordinarily use,” might be gross negligence. The language should have been qualified by saying “a person or people of ordinary care and prudence ordinarily use, or the great mass or majority of the people observe.” The care that any person or any kind of people observe is not the criterion of ordinary care, and falls far short of it, as any one can see. This court has taken great pains, in a great many cases, to be accurate as to the true definition of ordinary care or common care and prudence, and it is remarkable that any court should now fall into such an error. Ward v. Railway Co., 29 Wis. 144;Wheeler v. Westport, 30 Wis. 392;Hammond v. Mukwa, 40 Wis. 35;Griffin v. Willow, 43 Wis. 509; Prideaux v. Mineral Point, Id. 513;Bloor v. Town of Delafield, 69 Wis. 273, 34 N. W. 115;Cremer v. Portland, 36 Wis. 92;Jung v. City of Stevens Point, 74 Wis. 547, 43 N. W. 513. It would have been better and safer not to attempt to define ordinary care than to give the jury such a defective and misleading definition of it. The plaintiff might have been guilty of such contributory negligence as would defeat her action, and yet have fulfilled the requirement of such a definition. It is difficult to see how any plaintiff could use less care than this definition requires.

2. The court, after reading the statute that makes the town liable in such a case, said: “As you will observe, it makes the town absolutely liable for all damages sustained by the person or property of any person traveling thereon,--there being no negligence on the part of such person.” Here the court undertook to construe the statute, and tell the jury what it means, and in doing so left out all the conditions of the town's liability,...

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18 cases
  • Miller v. State
    • United States
    • Wisconsin Supreme Court
    • February 16, 1909
    ...long charge. A mere passing remark by a judge, perhaps warranted by the particular situation under treatment as in Duthie v. Town of Washburn, 87 Wis. 231-236, 58 N. W. 380, is neither a rule of court nor a personal suggestion of general application. What is said here is not to be taken as ......
  • Gould v. Merrill Ry. & Lighting Co.
    • United States
    • Wisconsin Supreme Court
    • May 11, 1909
    ...etc., Co. v. Whitcomb, 101 Wis. 226, 77 N. W. 175;Whereatt v. Worth, 108 Wis. 291, 84 N. W. 441, 81 Am. St. Rep. 899;Duthie v. Washburn, 87 Wis. 231, 58 N. W. 380. Among other references upon the part of the respondents were the following: Van Salvellergh v. Green Bay, etc., Co., 132 Wis. 1......
  • Pumorlo v. City of Merrill
    • United States
    • Wisconsin Supreme Court
    • May 9, 1905
    ...“a person or people of ordinary care and prudence ordinarily use, or the great mass or majority of people observe” (Duthie v. Town of Washburn, 87 Wis. 231, 58 N. W. 380); “such care as the great majority of men would use under like or similar circumstances” (Olwell v. Milwaukee Street R. C......
  • Coppins v. Town of Jefferson
    • United States
    • Wisconsin Supreme Court
    • January 9, 1906
    ...define the term, that element has been expressly incorporated in the language used. The following are instances: Duthil v. Town of Washburn, 87 Wis. 231, 58 N. W. 380;Nass v. Schulz, 105 Wis. 146, 81 N. W. 133; Schrunk v. Town of St. Joseph, supra; Rylander v. Laursen (Wis.) 102 N. W. 341;P......
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