Harper v. Holcomb

• Decision Date: 02 May 1911
• Citation: 146 Wis. 183,130 N.W. 1128
• Parties: HARPER v. HOLCOMB.
• Court: Wisconsin Supreme Court

146 Wis. 183

130 N.W. 1128

HARPER

v.HOLCOMB.

Supreme Court of Wisconsin.

May 2, 1911.

Appeal from Circuit Court, Milwaukee County; Lawrence W. Halsey, Judge.

Action by Charles W. Harper against Martin E. Holcomb. Judgment for plaintiff, and defendant appeals. Affirmed.

Action to recover for a personal injury.

The plaintiff claimed this: He went into the timber country in Iron county, Wisconsin, to serve defendant on a deer hunting expedition, his duty being to locate defendant and son in convenient places to shoot deer which he might start from surrounding territory and cause to approach near thereto. He so located them and went some distance therefrom, passing through a nearby swamp in an effort to discover deer. Not observing evidence of any he returned, traveling on an old logging road. When he arrived in sight of defendant, was within easy range of the latter's gun and about to call to him, the latter, without exercising ordinary care, taking plaintiff for a deer, shot, the bullet striking and severely wounding him in the leg. The facts of such occurrence were appropriately stated in the complaint with a prayer for judgment.

The defendant answered, admitting all allegations in the complaint except those in respect to shooting without ordinary care, alleging exercise of such care, that plaintiff was guilty of contributory negligence and denying the claimed amount of damage.

For the special plea of contributory negligence, defendant alleged this: Plaintiff was accompanied by his son. By direction they took their places a considerable distance apart upon the side of a hill where they were surrounded by timber and thick underbrush and were to remain watching for deer while he went out and made efforts to drive in any which might be in the vicinity. The understanding was that plaintiff should go in a particular general direction about a mile and return--taking about one hour's time. He had a bell and whistle with which, as he approached on the return, he was to signal in order to guard against danger of being mistaken for a deer as he passed along through the brush. Plaintiff appeared in the vicinity of defendant and his son in a very short time after they took their assigned places. Under the arrangement when he started out, he was not expected back for considerable time. He not only returned much earlier than defendant had reasonable ground to expect, but without observing the agreement as to signaling. The result was that defendant suddenly saw some animated thing in the brush within efficient range of his gun. The object, when first observed, was nearly stationary, then started rapidly forward, noiselessly, so far as defendant was concerned. Under the circumstances, from appearances to him, looking through the brush, the object was a deer and he accordingly shot, striking plaintiff as claimed. The latter knew it was very dangerous to move toward defendant's location without giving any signal of his approach, and nevertheless omitted to use any precaution in that regard.

The evidence was to this effect: Plaintiff served defendant on hunting expeditions before the one in question. Both were well acquainted with the dangers of their occupation. Plaintiff wore gray trousers,--quite of the color of a deer,--a red sweater and cap, so as to render his person distinguishable to one observing him traveling through the brush from that of a deer. The two started from their camp about 9 o'clock in the morning, accompanied by defendant's son. Plaintiff was furnished with a bell and whistle with which to signal defendant. At the best for the latter, plaintiff was to go out on the drive and when he started to come in fire a shot, or if he got on a trail of a deer two shots, and, in any event, ring his bell and use the whistle right along. Plaintiff testified that he was only to signal with his bell and whistle when he was on a deer trail,--driving one as he thought. When the party arrived near a swamp they separated, defendant and his son going to a location on a hill side, rising from the edge of the swamp, while plaintiff struck off through the swamp to make the drive. Defendant and his son posted themselves as directed some 300 feet apart. There was an old logging road through the swamp so located that a person traveling thereon would pass near where defendant was posted. Between the latter's location and the road there was brush, so, in looking from such location toward the road, the line of sight was through the obstructions. Soon after they reached the location, but before the time expected, plaintiff approached, traveling on the logging road. He had not given any signal of any kind. Looking toward the road, defendant suddenly observed, through the brush, an object which he thought might be a deer. He immediately drew a line on it with his gun preparatory to shooting. He hesitated an instant, uncertain whether the object was a deer or a human being or some other animated object. It remained stationary for an instant then started forward, quickly. Plaintiff could see only what to him appearedto be the fore part of a deer from the shoulders down. Without waiting to get a further view he pulled his gun, striking the object which proved to be plaintiff. The shot took effect in about the middle of the left thigh, fracturing the bone seriously. Plaintiff was about 300 feet from defendant, when shot.

According to defendant's evidence and the state of the case at the best for him, plaintiff, contrary to the agreement as to signals, approached where he was shot, not only without giving signals, but some time before he could have arrived had he taken the course suggested when the two parted,--one to take his place on the side of the hill and the other to make the drive. Plaintiff testified that he was directed not to approach the location of defendant's son without making a noise, because the latter was not experienced and might not use proper care before shooting, but was told by defendant that there was no danger of a person being shot by him for he was used to deer hunting; that following such admonishment he made no noise, as, when he came out, he was not where the boy could see him; that he felt safe from danger of being shot by defendant; that it was not a proper way to hunt deer to go through the woods making loud noises and there was no understanding that such a course should be pursued; that he was not to ring the bell unless he was on a deer track.

The case was submitted to the jury, resulting in the following findings: Defendant did not exercise ordinary care and caution to distinguish what was the object shot at. Such failure was the proximate cause of plaintiff's injury. There was no want of ordinary care on his part contributing proximately to the injury. It will take $5,000 to compensate him for such injury.

In due course judgment was rendered in plaintiff's favor on such verdict.

Edgar L. Wood, for appellant.

George C. Foster and R. Sleight, for respondent.

MARSHALL, J. (after stating the facts as above).

Several assignments of error, argued at considerable length by counsel for appellant, as we view the case, are not very material. However, we will refer to them briefly.

[1] Evidence was permitted of experiments made some time after the occurrence complained of for the purpose of showing appellant might readily have distinguished respondent from a deer had he paid reasonable attention to the matter. Such evidence was competent, if the conditions were so far similar to those existing at the time and place of the injury as to render the result of the experiments of any substantial use in determining the question of whether appellant used due care.

[2] So the objection raised only a question of competency for decision by the trial court, tested as indicated. A determination of such a question is not disturbable on review unless manifestly wrong. Emery v. State, 101 Wis. 627, 647, 78 N. W. 145, No such plain error appears at this point.

Evidence was permitted of conversations with respondent as to duration of the treatment for his injury, and likelihood of violence to appellant because of his act. No prejudicial error is perceived in respect thereto.

[3] Complaint is made because of the admission of evidence relating to the financial condition of respondent. No reference is made to the place where any such evidence can be found either in the record or in the printed case. Matters so imperfectly brought to the attention of the court are not ordinarily considered on appeal. They are therefore passed in this instance without further notice than this brief mention.

[4] The next complaint is as to exclusion of answers to questions given on cross-examination regarding customary precautions to avoid danger such as that which led to the injury in question. The interrogatory was propounded to respondent as to whether it was not customary to wear red clothing besides a cap. The answer was in the negative. It was stricken out on objection as not being legitimate cross-examination. The ruling was proper as respondent had not been interrogated in chief on the subject. It was not prejudicial in any event, because respondent wore a red coat or frock in addition to his cap. If there were such a custom it was substantially complied with. If there were not, respondent used greater precaution than was usual.

[5] Testimony was excluded tending to show that respondent made his appearance quicker than was reasonably to be expected. The idea of counsel at this point seems to have been that if, when appellant saw the object which he mistook for a deer, he did not have reasonable ground to expect respondent had been long enough absent to return, there was, necessarily, no culpable want of care in shooting as he did. That is obviously wrong.

[6] It is a matter of common knowledge that, in the deer hunting season, many persons are liable to be in the timber in the region where the occurrence took place, rendering it...