Oleson v. Flom ( 1875 )

LyoN, J.

1. It is claimed on behalf of the defendant, that there is no evidence to support the verdict. This claim is not sustained by the record; for the bill of exceptions contains testimony tending to show that, although the plaintiff had challenged others to wrestle with him immediately before he was injured, he did not so challenge the defendant, and that the defendant seized and suddenly threw him, and thus caused the injuries complained of. In other words, the testimony tends to prove tbe material allegations of tbe complaint. Such being tbe case, tbe mile is settled tbat we cannot disturb tbe judgment, even tbongb there may be a preponderance of evidence against tbe verdict.

2. Tbe instruction given at tbe request of tbe plaintiff -seems to bave been framed on tbe hypothesis tbat there was testimony tending to show tbat tbe defendant did not bear tbe plaintiff challenge others to wrestle with him. "We find no such testimony in tbe bill of exceptions, and tbe instruction in tbat particular is probably inaccurate. But tbe plain purport and meaning of tbe whole instruction is, that if tbe material allegations of tbe complaint are true, tbe pdaintiff is entitled to recover; and so tbe jurors must bave understood it, if they were men of ordinary intelligence. But if tbe instruction is to be construed critically and literally, it is most favorable to tbe defendant; for tbe inference which may be drawn.from its langage is, tbat if tbe plaintiff’s challenge to others was known to tbe defendant, such challenge is an excuse to tbe defendant for seizing and throwing tbe plaintiff,— tbe instruction being tbat tbe challenge was no excuse if tin-known to tbe defendant. But, of course, tbe learned circuit judge intended nothing of tbe kind when be gave tbe instruction. This is apparent from the qualification contained in tbe latter part of it: “if tbe jury are also satisfied * * tbat tbe defendant threw the plaintiff to tbe floor as charged in the complaint; ” tbat is to say, if be, “ without any cause or provocation, unlawfully, rudely and violently seized bold of tbe person of tbe plaintiff, and * * with great force and violence threw him on tbe floor,” and injured him, tbe defendant is liable for such injury. Tbe whole difficulty in tbe instruction seems to be tbat tbe word “unknown” is used therein, when tbe words “not gimen” should bave been used instead. As we understand tbe instruction, however, it is quite immaterial whether tbe defendant did or did not bear tbe plaintiff’s challenge to others; for in either case, if tbe plaintiff was injured “ as charged in the complaint,” he is entitled to recover. Hence the inaccuracy complained of is not sufficient to reverse the judgment.

■ 3. In the other portion of his charge to which specific exception was taken, we do not understand that the judge stated or attempted to state any rule of law. But if such statement implies (as counsel claim) a proposition of law, we think it is not materially inaccurate. The judge told the jury, in substance, that the defendant claimed he was not liable to respond in damages for the alleged injury, if the plaintiff challenged him to wrestle, or if, without express challenge, they mutually engaged in a friendly contest, and the injury was inflicted without any unfairness on the part of the defendant. The remainder of the statement is to the effect that the defendant claims a further restriction upon his liability, that is, “ if anybody was to blame, the plaintiff was as much at fault as he was.” Now, had the court instructed the jury that the plaintiff could recover if the defendant was most to blame for the injury, under the facts of the case we do not think it would have been error. The only fault imputed to the defendant is, that he 'seized the plaintiff and threw him, thus causing the injury, without such challenge or mutual engagement; while the only fault imputed to the plaintiff is, that he gave the challenge, or mutually engaged with the defendant in such contest. Hence there is no balancing of fault or negligence, and such supposed instruction would amount only to this: If the plaintiff challenged the defendant, or if they mutually engaged in a friendly contest of strength, the plaintiff’s fault or negligence alone caused the injury, and he cannot recover; otherwise he may recover. And this, we think, is the issue made by the pleadings and evidence.

By the Gov/rt. — The judgment of the circuit court is affirmed.