
    Owen, Appellant, vs. Portage Telephone Company, Respondent.
    
      November 18
    
    December 12, 1905.
    
    
      Telephones: Injury to person by lightning: Oontributdry negligence: Evidence: Order of proof: Instructions to jury: Proximate cause: Special verdict: Inconsistency: Supervening negligence: New trial: Juror’s ignorance of legal effect of finding.
    
    1. In an action against a telephone company for personal injuries caused by lightning conducted along a wire which had constituted a part of the ground connection of a telephone on plaintiff’s premises and which remained connected' with the ground wire though loose at the other end, the evidence is held to sustain a finding of plaintiff’s contributory negligence in hanging or permitting to be hung in one of the buildings the loose end of the wire, in a coil, upon a nail near which he and others were likely to stand, and in taking his place near the same during a violent electric storm.
    2. Exclusion of evidence which was admissible as tending to prove defendant’s negligence was not prejudicial error where the jury found such negligence. *
    3. Where an offer of evidence was understood by both parties and by the court to be in support of the claim that defendant was negligent, the exclusion of such evidence cannot properly be assigned as error on the ground that it was admissible to disprove plaintiff’s contributory negligence.
    •I. It is not an abuse of discretion to refuse to receive evidence to rebut contributory negligence before any evidence in support thereof has appeared.
    
      ■5. It is a matter of common knowledge that lightning is conducted along copper telephone wires and their connections attached to buildings.
    <6. Where the general charge as to contributory negligence correctly stated that plaintiff ought to have known and appreciated those things which a man of ordinary care and prudence would know and appreciate under like circumstances, a part of such charge stating that the jury should consider whether “the plaintiff knew or ought to have known and comprehended the risk and dangers” was not objectionable as allowing the jury to set up for themselves an ideal of what the plaintiff ought to. have known.
    
      7. An instruction that, to warrant a finding of plaintiff’s contributory negligence, his negligence must have “directly contributed” to his injury, the injury must have been the natural and probable result, and the situation must have been such that an' ordinarily prudent person would have anticipated and appreciated the danger of such an accident, was sufficiently favorable-to plaintiff and not objectionable because it did not state in terms that his negligence must have been the proximate cause-of the injury.
    8. Findings in a special verdict that defendant’s negligence was the-proximate cause of plaintiff’s injury, and that plaintiff’s negligence proximately contributed thereto, are not inconsistent.
    9. If plaintiff’s own negligence caused or contributed to the injury proximately, defendant is not liable unlesá guilty of gross negligence as defined in Watermolen v. Fox River E. R. & P. Go. 110-Wis. 153.
    10.The fact, shown by his affidavit, that a juror was led to agree to-a finding of plaintiff’s contributory negligence, contrary to his 0 conviction as to the fact, by being induced by a fellow juror to believe that such finding would not prevent a recovery by plaintiff, did not make it the duty of the court to grant a new-trial.
    Appeal from a judgment of the circuit court for Columbia-county: E. Eat SteveNS, Circuit Judge.
    
      Affirmed.
    
    Plaintiff was manager and in possession of a farm near the-city of Portage in which the defendant had, at his request, installed a telephone, the ground connection of which originally-was a three-foot rod of iron driven into the ground, which-proved inadequate in the winters of 1898 and 1899, whereupon the defendant, at plaintiff’s request and with his knowledge, connected with the ground wire another wire passing-over a shed-roof and into a pumphouse and thence to the floor and fastened around an iron pump. In the following spring a longer iron rod or pipe was substituted for the first one and the ground ydre of the telephone connected with that, thus-leaving the telephone suppliéd with two ground connections. Some time in 1899 or 1900 the wire in the pumphouse became disconnected from the pump by no act of defendant, and for two or three years the disconnected end hung there in close.proximity to tbe pump and was used by tbe plaintiff to bang á key on. Some time in tbe spring of 1903, probably in March, tbe plaintiff, or some of bis bousebold, coiled up tbe dangling -<|nd of tbis wire and bung it upon a nail inside of tbe pump-'kouse upon wbicb bung a small looking-glass used by members •of tbe family for toilet purposes, of wbicb plaintiff bad full knowledge. Meanwhile plaintiff bad no knowledge or information tbat tbis wire bad ever been disconnected from tbe telephone ground wire or tbat it bad not. On May 26, 1903, in ■tbe midst of a violent electric storm, plaintiff, after ablutions, stepped in front of tbis glass to comb bis hair, using for that purpose a metallic comb. His face was but a few inches from tbe coil of wire banging on tbe nail. Suddenly there was a flash of lightning, apparently from tbe end of tbis wire, wbicb •struck plaintiff’s face, rendering him unconscious and causing-serious injury. There was also evidence tbat about tbe same moment lightning struck a telephone pole not very far from tbe bouse, and signs of scorching near tbe telephone and at tbe ■end of tbis wire were discovered, claimed to indicate tbat tbe lightning striking tbe pole bad been conducted through tbe telephone wire into tbe bouse and thence through tbe wire into tbe pumphouse. Tbis action was brought to recover plaintiff’s damage.
    Tbe jury found by a special verdict (1) tbat plaintiff’s injury resulted from tbis wire; (2) tbat defendant was not guilty of negligence in not disconnecting tbe pumphouse wire from tbe ground wire; (3) tbat tbe defendant was negligent In leaving tbe wire disconnected from tbe pump; (4) tbat ■such negligence was the proximate cause of the' injury; (6). tbat there was “want of ordinary care on tbe part of tbe plaintiff, wbicb contributed to tbe injury;” and (7) damages $1,000. Plaintiff moved to reverse tbe answer to tbe sixth ■question -and enter judgment in his favor on such amended verdict, and, failing such relief, tbat tbe verdict be set aside and new trial granted. Such motions were overruled and judgment rendered for defendant on the verdict, from which plaintiff appeals.
    Eor the appellant there was a brief by G. 0. Wayland, G. A. Fowler, and Burr W. J ones, and oral argument by Mr. J ones.
    
    
      Daniel H. Grady, for the respondent.
   Dodge, J.

We agree with the trial court that there was •evidence upon which the jury might have based their conclusion of plaintiff’s contributory negligence in hanging or permitting to be hung on his premises the roll of wire in immediate proximity to the place where he and others were likely to stand in front of the looking-glass, and in taking his place near the same at a moment of violent electrical disturbance. The principal insistence of appellant against the sufficiency of such evidence is based upon the assertion that appellant had no knowledge that the wire in the pumphouse had not been disconnected from the ground wire of the telephone. We cannot think this sufficient. He knew that, when originally put in place and carried into the pumphouse, it had been so connected with the ground wire, and he offered no evidence of any knowledge or investigation on his part as to whether it had been disconnected. We think it within the province of the jury to consider whether it was not negligence in one to permit such a condition to exist on his own premises without -even investigation and to expose himself to the peril thereof.

Error is assigned upon a ruling excluding an offer of proof that the iron stake or rod to which the main ground wire from plaintiff’s telephone was attached was not an approved device, being rusty and not galvanized, so that, as argued, it failed of its full duty in conducting electricity to the ground, and at least enhanced the likelihood of lightning passing through the pumphouse wire. The objection and ruling were based upon, the contention that the notice of injury failed to describe any such defect or negligence among the grounds upon wbicb plaintiff’s claipi was made in accord witb sec. 4222, Stats. 1898. We shall not deem necessary to decide bow fully or specifically tbat notice must describe tbe negligence of defendant upon wbicb a plaintiff grounds bis claim, nor whether, by reasonable interpretation, tbe notice bere may be beld to point out this defect; for, if it be conceded tbat tbis evidence offered was admissible as tending to prove defendant’s negligence, its exclusion could not bave bad any prejudicial effect upon tbat issue, because tbe jury found defendant negligent. An error wbicb does not affect a substantial right cannot justify a reversal. Sec. 2829, Stats. 1898. But, says appellant, even if not admissible to prove defendant’s negligence, such evidence did tend to rebut contributory negligence on plaintiff’s part, if, as be claims, be had no knowledge of tbe defects in tbe ground connection, nor, therefore, of enhanced peril from tbe pumphouse wire. Tbe offer of evidence was,, obviously, not understood by either party or tbe court to be in support of any such issue; hence it cannot, in fairness to tbe trial court, be said tbat any ruling was made on tbat subject so as to be a legitimate ground upon wbicb to assign error. Waiving tbat consideration, however, could error be predicated upon exclusion of evidence in denial of plaintiff’s negligence at tbat stage of tbe trial ? At tbe time of tbe offer there bad been no evidence drawn out wbicb could support an imputation of negligence of plaintiff. He and another witness bad merely given tbe barest outline of tbe catastrophe, and be bad been withdrawn from tbe stand, apparently to make place for some medical witnesses, when tbe witness Burton was called to give descriptions of tbe telephone and tbe various wires as be observed them immediately after tbe injury. Contributory negligence is purely and strictly defensive in Wisconsin. As said in one of tbe cases cited, it is like tbe defense of payment. Randall v. N. W. Tel. Co. 54 Wis. 140, 147, 11 N. W. 419; Hoye v. C. & N. W. R. Co. 67 Wis. 1, 15, 29 N. W. 646; Gill v. Homrighausen, 79 Wis. 634, 48 N. W. 862. Evidence in support thereof is defensive merely, and such affirmative evidence cannot regularly be introduced until plaintiff’s case is closed; nor, in the proper order of trial, should evidence in denial thereof be received until defendant rests his case. Of course, in practice it often happens that plaintiff and his witnesses, in narrating the transaction surrounding an injury, cannot avoid, either on direct or cross-examination, describing his conduct and thus furnishing proof of the defense of which defendant can avail himself, and it might then be proper to permit plaintiff to introduce explanatory evidence to avert the result of motion for nonsuit. Even in that case the evidence would, strictly, be out of order and admissible only in discretion. We surely could not hold it abuse of discretion to refuse to receive evidence' to rebut contributory negligence before any had appeared in support of that issue. Such would be the situation here if the evidence had been offered expressly to disprove contributory negligence, and no error would exist in its exclusion.

Error is assigned because the court told the jury, apropos of the plaintiff’s contributory negligence: “It is matter of common knowledge with all men that lightning is conducted along such wires as that which ran to the ’phone and to the pumphouse.” We think the court was entirely correct. We suppose it to be common knowledge that a copper wire is a better conductor of electricity than most other things, and that any wire having contact with the outside of buildings is liable to become charged with electricity seeking way from the atmosphere to the ground, especially in times of electrical disturbance. We discover no error in this instruction.

Complaint is made of instruction upon the same issue, that the jury should consider whether “the plaintiff knew or ought to have known and comprehended the risk and dangers.” The excepted portion of the instruction, standing alone,'might be objectionable upon the grounds discussed in Dehsoy v. M. E. R. & L. Co. 110 Wis. 412, 416, 85 N. W. 973, as allowing tbe jury to set up for themselves an ideal of that wbicb tbe plaintiff ought to have known; but this is a portion of a general charge in which the jury were correctly informed that plaintiff ought to know and appreciate those things which a man of ordinary care and prudence would know and appreciate under like circumstances. Thus qualified, we can discover nothing of error in the instruction.

The charge on the subject of contributory negligence is further complained of generally, because it did not in terms inform the jury that negligence on plaintiff’s part which directly contributed to the injury must have been the proximate cause thereof, with a statement of all the elements pertaining to proximate cause. We do not think it obnoxious to this objection. It required for an affirmative answer that his negligence, if any, must have “directly contributed” to his injury; but the rest of the same sentence required also that the injury must have been the natural and probable result and that the situation must have been such that an ordinarily prudent person would have anticipated and appreciated the danger of such an accident. This instruction was at least favorable enough to the appellant. If not necessary that his negligence should have contributed “directly,” that requirement could not prejudice him; for all the elements of proximate cause were re■quired to be found, and this in addition.

In this immediate connection we may consider the contention that the findings that defendant’s negligence was the -proximate cause of the injury and that plaintiff’s negligence -proximately contributed are so inconsistent that they cannot ■stand together. This would, indeed, be novel doctrine in this ■state, where the law has been declared from the earliest days 'that, although the defendant’s negligence be the proximate cause of an injury, yet plaintiff cannot recover if his own negligence contributed thereto. Counsel’s contention is, in effect, that, if the first fact be found, the latter cannot exist — a proposition in conflict with too many decisions to cite. One will suffice: Boyce v. Wilbur L. Co. 119 Wis. 642, 650, 97 N. W. 563, where it is said of plaintiffs negligence: “It need not be tbe sole cause, and it may contribute but slightly.” However, there is no necessary inconsistency between the two findings. To the finding of proximate causation by defendant’s negligence, it is but necessary that the probability of some injury be within reasonable anticipation, not the particular injury, — not even an injury to the particular person. Mauch v. Hartford, 112 Wis. 40, 87 N. W. 816; Meyer v. M. E. R. & L. Co. 116 Wis. 336, 340, 93 N. W. 6. Now the jury might well have believed that just such an injury as this was to be reasonably anticipated to some person having no knowledge of the danger and therefore guilty of no negligence in exposing himself to it, and thus have properly found complete proximate causal connection with any injury actually resulting ; but tire fact that the person who happened to receive the injury had such knowledge of the peril as to render him negligent in the exposure to it would not derogate in any degree from that finding, although it might justify a conclusion of -contributory negligence on his part. Of course, the conduct ■of a plaintiff which brings on the injury may have been so extraordinary and unusual as to tend to the conclusion that no injury was probable enough to be anticipated by any one, and ■such conduct is provable under the general issue, not because it is contributory negligence, but because¿ as part of the alleged chain of events, it interrupts the natural and probable •causal connection between defendant’s negligence and the injury suffered. Jones v. S. & F. du L. R. Co. 42 Wis. 306, 310.

A still further complaint is that the court did not instruct the jury that, even if plaintiff were guilty of negligence in coiling the wire and hanging it in a place dangerous to those using the looking-glass, still the defendant would be hable if, after knowledge of such negligence, it might, by the exercise •of ordinary care, have averted the injury. This is the doctrine of comparative or supervening negligence, wbicb lias no place in tbe jurisprudence of this state. If plaintiff’s own negligence caused or contributed to tbe injury proximately, tbe defendant is not liable unless guilty of gross negligence as recently defined by tbis court. Watermolen v. Fox River E. R. & P. Co. 110 Wis. 153, 85 N. W. 663, and cases cited.

Another assignment of error is based upon refusal to-grant a new trial upon tbe affidavit of one of tbe jurors that, while he agreed and consented to answer tbe sixth question as to contributory negligence in tbe affirmative, be did so against bis conviction that tbe true answer should have been negative, by being induced to believe that tbe affirmative answer would be immaterial and not prevent tbe plaintiff’s recovery, and that such belief was brought about by tbe statement of a fellow juryman that on. some'previous occasion be bad been advised by a distinguished lawyer to that effect and knew it was so. We find nothing in tbis affidavit to make it tbe duty of tbe court to set aside a verdict. It does not in any wise avert tbe fact that tbe verdict, as filed, was that agreed upon, and it does show that in tbis instance at least tbe trial court was peculiarly successful in securing an answer to tbis question not induced by a desire to favor tbe party in fact benefited by it. One of the important purposes of tbe special verdict is to secure tbe answer of tbe jurymen upon tbe concrete issues of fact in ignorance of tbe legal effect of their answers, so that they may be unbiased by favor or antagonism to-either side. It certainly is no ground for setting tbe verdict aside that such end has been accomplished in tbe present case. However, tbe affidavit in no wise impugns the correctness of tbe written verdict as expressing tbe conclusion in fact agreed to by tbe jurors. It, at most, suggests tbe mental processes on affiant’s part which led him to such agreement. We think tbis form of attack upon a verdict is entirely against tbe weight of authority, as' is at least intimated in Wolfgram v. Schoepke, 123 Wis. 19, 100 N. W. 1054, where most of tbe cases on tbe subject in tbis state are gathered; also in Hempton v. State, 111 Wis. 127, 145, 86 N. W. 596.

We find no prejudicial error necessitating reversal.

By the Gourt. — Judgment affirmed.  