Prahl v. Gerhard

25 Wis. 466

• Court: Wisconsin Supreme Court
• Decided: January 15, 1870
• Status: Published

Opinion

Paine, J.

It would seem from the result shown by the evidence in this case, that there probably was some lack of skill or care in tying and casting the colt. But the fact does not appear with sufficient clearness to justify this court in disturbing the verdict of a jury, after the court below has refused to do so. The instructions were correct. They informed the jury that the defendant was bound to use due care and skill, and submitted to them fairly the question whether he had done so. The appellant’s counsel makes no objection to them, except in one particular. The defendant had introduced an expert, and proposed to prove by Mm that the colt “died from some injury unconnected with, the castration or breaking of the legs.” This was objected to, and the court overruled the objection, to which exception was taken. But the only answer of the witness was, “accidents will happen and may happen.” And in instructing the jury the court said: “If the injury was purely an accident, or from some other cause, while the defendant used and exercised a proper degree 'of skill, then the defendant is not liable.”

The appellant objects to the answer of the witness, and to the remark of the court, assuming that the injury might have resulted from accident. But we can see no error in this. The general fact stated by the witness was one which every juror would have been entitled to assume without any proof. It is a part of that common, general knowledge, which jurors are not only at liberty,- but are required, to apply to the determination of every case submitted to them. Every body knows that in handling colts accidents may happen. Counsel might urge, in such a case as this was, even if no witness had stated this general fact, that the injury was accidental. And there was no impropriety in the court’s telling the jury that they should determine whethér it arose from the fault of the defendant, or from accident without his fault. That alternative arises ' from necessity in every such case, where the proof does not make it irresistibly clear what was the precise cause of the injury.

By fhe Oowrt. — The judgment is affirmed.