Jochem v. Robinson

1 L.R.A. 178, 39 N.W. 383, 72 Wis. 199, 1888 Wisc. LEXIS 231

• Court: Wisconsin Supreme Court
• Decided: September 18, 1888
• Status: Published

Opinion

Cassoday, J.

The complaint in this action was held to be sufficient on demurrer on the former appeal. 66 Wis. 638. It alleged that the merchandise being transferred from the sleigh to the store was packed in kegs of the capacity of about five gallons each, weighing less than fifty pounds. Upon such state of facts it was held to be a question for the jury whether the obstruction of the sidewalk by the use of the skid was merely temporary' and reasonably necessary. It is now established as a fact that, instead of kegs of the weight mentioned, they were barrels of sugar, each weighing 300 pounds, and that the obstruction was merely temporary. Certainly the plaintiff is in no position to complain of the submission to the jury, of the question whether such use of the skid was reasonably necessary for the convenient unloading of such bulky and ponderous articles. Of course, the defendant has no occasion for complaint. The plaintiffs contention is that there was no necessity of taking the barrels in at the front end of the store, since there was an alley in the rear; that is to say, that the defendant had no right to thus obstruct the sidewalk, except in case of absolute necessity. But, as said on the former appeal: “ This necessity need not be absolute. It is enough if it be reasonable. ... If the law required an absolute necessit\q but few could escape liability.” 66 Wis. 642. Whether it was reasonable or not was properly for the jury. It appears to have been in accordance with the usual and customary method of handling such goods in the vicinity. We perceive no good reason for excluding evidence of such custom. The trial court was under no- obligation to give to the jury mere abstract propositions of law; nor instructions upon matters not in evidence; nor upon matters which were immaterial under the questions submitted; nor as to matters which were in substance given in the general charge. It is claimed that the trial court did not sufficiently distinguish between the want of reasonable necessity for using the skid and the want of ordinary care or negligence in its use. .But both questions were separately submitted to the jury in a way not prejudicial to the plaintiff.

Since the jury found the plaintiff guilty of contributory negligence, the other errors assigned, not bearing upon that question, would seem to have become immaterial upon this appeal. But it is said that there was error in one of the instructions given to the jury upon that question, as follows: “ If. the obstruction was a dangerous one for the plaintiff to attempt to pass over at that time, and there was room for him to pass around it at either end, then he -was bound, in the exercise of ordinary care, to pass around it, and not to attempt to pass over it, and if he voluntarily, and not of necessity, attempted to mount a known dangerous obstruction, when he could have safely passed around it or could have avoided the danger by waiting a reasonable time, then he was wanting in the use of ordinary care and is not entitled to recover in this action.” The point of the exception is that the instruction should have been confined to apparent dangers. But we think the instruction was limited to “ a known dangerous obstruction,” that is, known to the plaintiff.

The law of the case having been substantially settled on the former appeal, there seem to be no other material questions for consideration.

By the Court.— The judgment of the county court (now superior court of Milwaukee county) is affirmed.