Rhyner v. City of Menasha

• Decision Date: 21 June 1900
• Citation: 107 Wis. 201,83 N.W. 303
• Parties: RHYNER v. CITY OF MENASHA.
• Court: Wisconsin Supreme Court

107 Wis. 201

83 N.W. 303

RHYNER

v.CITY OF MENASHA.

Supreme Court of Wisconsin.

June 21, 1900.

Appeal from circuit court, Winnebago county; George W. Burnell, Judge.

Action by Jacob Rhyner against the city of Menasha. From a judgment in favor of plaintiff, defendant appeals. Reversed.

The plaintiff brings this action to recover damages for injuries sustained by him by reason of his having fallen in a hole in one of defendant's streets. The defect shown was a hole close to the sidewalk, about 2 feet long and 15 inches wide, in the shape of a half moon, apparently caused by surface water from the street running under the sidewalk. The hole was unguarded. Plaintiff was passing along the street on a dark, rainy evening, and his hat blew off. Upon returning from the pursuit of his hat, he stepped into the hole, and broke his leg. The plaintiff's proof showed the hole had existed from a few weeks to several months. The answer was a general denial. The jury found the following special verdict: “(1) Did the plaintiff sustain the injury at the time and place alleged and claimed by him? Yes. (2) If you answer the first question, ‘Yes,’ then answer the following: Was the said street at the place where the plaintiff claims to have been injured at the time in a defective or dangerous condition or out of repair? Yes. (3) Did such injury happen to the plaintiff by reason of the defective or dangerous condition or want of repair in said street? Yes. (4) Was plaintiff's injury caused by the negligence of the defendant? Yes. (5) If you answer the third question, ‘Yes,’ then answer the following question: Had such defective or dangerous condition or want of repair of said street existed for three weeks or more previous to the happening of said injury? Yes. (6) At the time of the injury, and some time before, had the plaintiff knowledge of such hole and condition of said street? Yes. (7) Was the plaintiff guilty of a want of ordinary care and prudence which contributed proximately to the injury? No. (8) Was the plaintiff intoxicated at the time he received the injury? Yes. (9) If you answer the last question, ‘Yes,’ then answer the following question: Was the plaintiff at the time he received the injury so intoxicated as to be incapable of managing and conducting himself with ordinary care and prudence? No. (10) Omitted. Not answered. (11) If the plaintiff is entitled to recover, at what sum do you assess his damages? Eight hundred dollars ($800.00).” The plaintiff submitted 14 requests for instructions, all of which were given. Defendant asked the court to instruct upon 43 separate propositions of law, some of which were given as requested, others modified and then given, and the remainder refused. The court also gave brief instructions as to each question. The record fails to disclose at what stage of the proceedings the requested instructions were given. A motion for a new trial was denied, and judgment was entered for plaintiff, from which the defendant has taken this appeal.Bouck & Hilton, for appellant.

Eaton & Weed and A. E. Thompson, for respondent.

BARDEEN, J. (after stating the facts).

A great multitude of questions are raised on this appeal. The defendant complains that evidence was improperly received; that improper instructions were given, and proper ones refused; that the special verdict is bad; that the question as to the alleged defect in the street, with the jury's answer thereto, does not find actionable negligence; that the question of contributory negligence was not properly submitted; and that under the evidence the answers to some of the questions are inconsistent. In fact there are very few things that transpired during the course of the trial against which some complaint is not made. We have no desire or disposition to scold or lecture counsel or the trial court, but there are some things in this record justly open to criticism, and sufficient to call for a protest on our part against their repetition. In order to consider and determine the many questions raised on this appeal, it is necessary to review the charge to the jury and its application to the several questions of the special verdict. It is impossible to tell from the record just what instructions the court gave with reference to any single question in the verdict. In the general charge the court refers to the several questions, and does little more than state the claims of the respective parties, with an admonition to the jury to find the facts according to the evidence.

Turning, now, to the plaintiff's requests, we find a list of 14 distinct propositions of law, which the record recites were given. and to which the defendant excepted. Many of these requests contain abstract propositions of law, proper to have been given had the case been submitted on a general verdict, but distinctly improper when a special verdict is required. Not one of them is addressed to any particular question, although some of them would have been proper had they referred to and been given when the jury's attention was being directed to the particular fact for decision. The record fails to show at what stage of the proceedings these requests were given, or whether they were given with reference to any particular question. The rule which commends itself to our judgment is as stated in McDermott v. Jackson, 102 Wis. 419, 78 N. W. 598, and Schaidler v. Railway Co., 102 Wis. 564, 78 N. W. 732: “If a special verdict be rendered, the instructions appropriate to each question, whether asked by the parties or given by the court of its own motion, should be submitted to the jury in immediate connection with the questions to which they are, respectively, applicable. This is the only way in which the jury can obtain an intelligent appreciation of the legal propositions which are to govern them in answering the various questions.” This rule is self-evident, and a failure to observe it tends to confusion, and is likely to lead to harmful results. As noted, several of the propositions requested were mere legal abstractions, correct as propositions of law and applicable in case of a general verdict, but of no helpful value to the jury in the decision of the questions of fact in the case. The object of a special verdict is to obtain from the jury answers to certain questions of fact, without regard to their legal effect upon the rights of the parties, and thus obtain a result as far as possible free from sympathy or prejudice. The giving of instructions only applicable to a general verdict tends to defeat that object, and undermines the foundation upon which a special verdict should stand. Ward v. Railroad Co., 102 Wis. 215, 78 N. W. 442. The errors in this regard are greatly increased when we come to consider the defendant's requests. In a thicket of some 43 distinct propositions so requested, there are many susceptible to the objections already stated. Some were given and some refused, and it is only after a laborious search through the case, assisted by the record, are we able to determine that result. This difficulty emphasizes the necessity of the rule stated that all the instructions with reference to a given question should be grouped and given at one time, and so preserved in the printed case that this court will not be compelled to go on a hunt to ascertain the law given to the jury. These reflections are not made in a spirit of fault-finding, but to indicate how difficult it is to determine just what instructions were actually given with reference to any particular question in the verdict.

Question No. 2 of the verdict, and the answer thereto, are as follows: “Was the said street at the place where the plaintiff claims to have been injured at the time in a defective or dangerous condition or out of repair? Yes.” The objection suggested to this finding and to the verdict is that it does not cover any fact which establishes the city's liability under the statute. The city's liability is imposed by section 1339, Rev. St., which makes it responsible for any damage which shall happen to any person “by reason of the insufficiency or want of repairs” of any street within its limits. Under this section, the test of the city's liability is whether such street was in a reasonably safe condition for use. A street may be defective or out of repair and still be in a reasonably safe condition for travel. Hence the finding in the disjunctive that the street was “in a defective or dangerous condition or out of repair,” without any other fact to support it, fails to show actionable negligence. It is not enough to say that the court properly instructed the jury as to the measure of the defendant's liability. The verdict on its face must find the facts, or it is fatally defective. Kucera v. Lumber Co., 91 Wis. 637, 65 N. W. 374. But it is said that this finding is in the words of the charter of the city (section 20, subc. 8, c. 123, Laws 1891), and is therefore sufficient. That section does not assume to impose any liability upon the city, but merely relates to the question of notice.

The defect complained of was a hole about 2 feet long...