Fitzgerald v. Town of Weston

• Decision Date: 10 May 1881
• Citation: 52 Wis. 354,9 N.W. 13
• Parties: FITZGERALD, ADM'X, v. TOWN OF WESTON.
• Court: Wisconsin Supreme Court

52 Wis. 354

9 N.W. 13

FITZGERALD, ADM'X,

v.TOWN OF WESTON.

Supreme Court of Wisconsin.

Filed May 10, 1881.

Appeal from circuit court, Waupaca county.

G. W. Cate, for respondent.

Silverthorn & Hurley, for appellant.

COLE, C. J.

We are inclined to hold the exception whlch was taken to that part of the charge in respect to the intoxication of the deceased when he was injured as well taken. There was testimony which tended to prove that the deceased had been drinking freely on the day of the accident. It was claimed by the defendant town that he was intoxicated on that day, and was driving carelessly and recklessly when he approached the obstruction in the highway. The learned circuit judge at first charged, in substance, that there was evidence as to the deceased being intoxicated at the time he was injured, which was proper for the jury to consider as bearing upon the question of contributory negligence. The circuit judge then proceeded to say: “But the mere fact of being intoxicated does not of itself prove negligence,--in fact, it may be the peculiar idiosyncrasy of some to have increased prudence with intoxication, though usually the reverse is the case; but I merely say, the fact of intoxication alone does not prove contributory negligence, unless the proof would be to the extent of establishing intoxication to where imbecility would begin to affect the individual.”

The criticism which is made on this charge is that it was equivalent to telling the jury that unless the evidence showed that the deceased was in that extreme state of intoxication which rendered him imbecile, the fact that he was intoxicated had no bearing upon the question of contributory negligence, and need not be considered. It is not clear what the charge does mean, and it is possible the jury may have attached that sense to it. If, indeed, it was so understood, it would convey a wrong impression and mislead; for intoxication in any degree is a fact which may and should be considered on a question of negligence. It is certainly not necessary that a person be so drunk as to be imbecile before his conduct will be affected by his intoxication. It is a common observation that some persons, when slightly under the influence of liquor, are less circumspect and careful than when perfectly sober.

In Burns v. Town of Elba, 32 Wis. 605, this court approved the instruction of the trial court, which was to the effect that if it was satisfactorily proven that the deceased was intoxicated at the time of the injury, that this fact in and of itself imposed upon the plaintiff the onus of showing that the deceased was in the exercise of ordinary care and prudence. That is, according to the doctrine of this case, the jury would be warranted in inferring negligence from the fact of intoxication alone. But the learned circuit judge would seem to hold otherwise, and that the fact of intoxication alone would not prove contributory negligence unless there was such a degree of intoxication as to render the deceased imbecile. We think, if the evidence tended to prove that the deceased was...