Osborne v. Montgomery

FowleR, J.

(concurring). I concur with the disposition of the case made by the court, and for the most part with the views expressed in the opinion. However, with two statements made in the opinion I do not agree and shall express my individual views.

Before entering upon the discussion of the points in difference, I will say that I agree with the opinion of the court that the definition of negligence given in

Hamus v. Weber,

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199 Wis. 320 , 226 N. W. 392 , does not apply to every situation. If A. were driving his automobile with due care along a street and a child should dash out between two automobiles parked at the side, and A. could not avoid striking and seriously injuring or killing the child without turning to the right into a parked car, he would not be negligent in so doing although he would and should foresee that so turning would result in injury to the owner of the parked car. The

Hamus Case

definition would make him negligent. But the emergency takes A.’s act out of the field of negligence and makes his collision with the parked car an unavoidable accident. A.’s duty would be not to avoid injury to the parked car but to avoid the more serious injury to the child. As some injury would necessarily result from his conduct, his duty would be to take the course that would result in the less serious consequences. If he took such actibn in the emergency as to him seemed likely to cause the less injury, he would be free from fault. But if the definition of negligence in the

Hamus Case

had been prefaced with the statement “under the circumstances here existing” or the like, the statement there made would have been strictly correct because limited to the particular case. A trial judge is happily not required to state all the law there is on a subject in any one case, or so to state the law on a subject in any one case that it will apply to every conceivable case. If he applies the law correctly to the situation directly involved he has done all that is required.

The first statement in the opinion of the court to which I referred is: “The defect in the instruction approved in the

Hamus Case

is that it indicates no standard by which the conduct of the defendant is to be measured.” To me it seems clear that the instruction does give a standard much more easy of application than that of the conduct of the great mass of mankind, or the conduct of the man of ordi

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nary care and prudence. Except when the standard has been fixed by legislative act or rule of court-made law, we really apply the standard given in the

Hamus Case

to determine whether the defendant has done as the man of ordinary prudence or the great mass of mankind would have done in a given situation. We do not at all consider what persons actually have done in like situations. We base our conclusion whether from the circumstances the great mass of men or the man of ordinary prudence would- have done as did the defendant, on whether the defendant should or should not have foreseen — on whether the ordinary person would or would not reasonably have foreseen — that some harm to another was likely to result from the act or omission involved. We reason that the defendant did not use ordinary care, that he did not do as the mass of mankind ordinarily do, because his act was dangerous and he should have foreseen the danger and not done the act. Thus it seems to me that the

Hamus Case

rule not only furnishes a standard of measurement of the defendant’s conduct, but that it furnishes the one that the jury actually applies in determining the question of ordinary care under the definition of it commonly given.

The other statement in the opinion of the court to which I referred is that: “The instruction given in the

Haanus Case

confuses foreseeability as applied to negligence with foreseeability as applied to the liability for the consequences of a negligent act.” This statement goes upon the assumption that the instruction in the

Hamus Case

states or implies that one is not negligent unless an ordinarily intelligent and prudent person would foresee all the natural consequences of his act, whereas it is only necessary that such person would foresee some harm. That the essentials of negligence are as indicated is correct. But the

Hamms Case

instruction does not state or imply to the contrary. The inference

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that it does so state or imply arises from the statement in the instruction that “He [the defendant] is in duty bound to foresee all such natural consequences of his conduct

as an ordinarily prudent and intelligent person would ordinarily foresee under the then present circumstances.”

This merely states that the defendant is bound to foresee what — the things which, the natural consequences which — an ordinarily intelligent and prudent person would foresee. It does not state or imply that he must foresee or that an ordinarily intelligent and prudent person would foresee all the natural consequences. The point is that the defendant must foresee that some injury would naturally result if an ordinarily intelligent and prudent person would so foresee, and that in judging whether he should have foreseen some injury it is to be considered that he should have foreseen all consequences that an ordinarily intelligent and prudent person would have foreseen.

The method of submission used in the

Hamus Case

was adopted by the learned circuit judge who presided at the trial in an effort to get away from the stereotyped method of submitting negligence cases with which this court had recently expressed dissatisfaction in the case of

Berrafato v. Exner,

194 Wis. 149, 156 , 216 N. W. 165 . It was the result of many years’ experience as a trial judge and much thought. In my judgment, based upon long experience as a trial judge, it worked a distinct improvement. My experience with a similar method of submission convinced me of its superiority over the method in common use. We should aid so to simplify and clarify the submission of issues as best to enable the jury to understand them. It is in my opinion not advisable to revert to the method of submission formerly uniformly used which required the fact of causation to be so submitted as to associate the idea of physical causation with that of anticipation of injury with which it has no logical or rational connection and which made the

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idea of “proximate cause” so perplexing and misleading to juries. The issue of negligence to my mind is a very simple issue in the ordinary case. The elements of negligence are in my view stated in the simplest way and in a way as logically correct as any ever suggested, in the opening chapters of Shearman & Redfield on Negligence. The elements of negligence are there stated in sec. 5, substantially as follows: There must exist in every negligence case five things: (1) A legal duty to use care. (2) Breach of that duty. (3) Absence of intent to do wrong. (4) Injury to the plaintiff. (5) Causation, by which is meant merely the existence of the relation of cause and effect between the breach of duty and the injury. • As to (31, it may be omitted on framing a verdict or instructing a jury in the ordinary case as intent to do injury is not an issue except where gross negligence is involved. As to (4), that may also be omitted as ordinarily that injury was done is not in issue. As to (1), whether the defendant owed the duty of care is a question of law. This leaves in the ordinary case only two questions of ultimate fact to be considered by the jury — whether the defendant exercised proper care, and causation. . These are covered in skeleton by the questions: (1) Did the defendant fail to use due care? And if Yes, (2) Did his such failure cause the plaintiff’s injuries? Instruction in connection with (1) may be in substance: “Under situations such as are here involved a person fails to use due care when he does an act,” etc., as stated in the

Hamus Case

or as stated at the close of the opinion of the court, if that be preferred. In this there is no general definition of negligence for lawyers to haggle about. As said in sec. 1 of Shearman & Redfield on Negligence: “Many definitions of negligence have been attempted, none of which appears quite satisfactory, as no one of them has proved satisfactory to the framer of any other.” The definition suggested in the opinion of the court is doubtless as exact as any and more in

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accord with the definition of negligence quoted in the'opinion from the Restatement of the Law than that given in the

Hamus Case.

But whichever statement is used in instructing relative to due care, or ordinary care if that term be preferred, in connection with the skeleton form above suggested, I see no reason to lumber the instruction up with ideas about intention of wrongdoing or protected interests, with neither of which the jury is concerned.

The above suggestion relative to submission of the issue of negligence has been made in the fear that although the treatment of the subject of negligence in the very able, exhaustive, and carefully prepared opinion of the court be in all respects correct, it will hardly aid the trial judge in his submission of the simple issue of negligence as it arises in the every-day case. Attempt to apply many of the ideas expressed in the opinion in submitting the ordinary case would likely lead to “confusion worse confounded” than it is in submitting cases under the “proximate cause” idea so long adhered to by this court as the only permissible method of submission.