Miller v. Kenosha Electric Railway Co. , 1908 Wisc. LEXIS 107 ( 1908 )

Bashrokd, J.

The appellant assigns as error the refusal of the court to give an instruction requested in his behalf and the giving of an instruction requested by the defendant. The bill of exceptions contains no instruction requested by the appellant and no ruling .of the court upon the subject; nor does it contain any instruction given at the request of the defendant or any exception thereto; nor does it contain the charge of the court. It is well settled that the charge of the court is no part of the record unless it be incorporated in the bill of exceptions. Geisinger v. Beyl, 71 Wis. 358, 37 N. W. 423; Holum v. C., M. & St. P. R. Co. 80 Wis. 299, 50 N. W. 99. The certificate of the trial court states that the bill of exceptions contains “all the exceptions taken and rulings made in said cause.” The bill of exceptions when settled shall be signed by the judge — sec. 2873, Stats. (1898), — and when so signed is treated as a verity in this court. Deuster v. Milwaukee St. R. Co. 89 Wis. 191, 61 N. W. 766. This court can consider no error assigned unless it is part of the record or embodied in the bill of exceptions. Holum v. C., M. & St. P. R. Co. 80 Wis. 299, 50 N. W. 99; Lathrop v. Humble, 120 Wis. 331, 334, 97 N. W. 905.

Errors assigned which remain for consideration are the refusal of the court to direct a verdict for the plaintiff except as to the amount of damages, in refusing to allow an amendment to the complaint, in refusing to strike out the answer to the first question of the special verdict, in refusing to change the answer thereto^ and in refusing to set aside the verdict and grant a new tidal. These assignments of error find no support in this record if the cause of action stated is for negligence. The gravamen of the complaint is the alleged neglect of the defendant in not removing the’charged wire which had fallen in the street or in not guarding the same so as to avoid injury to the traveling public. The answer of the jury to the first question establishes the fact that the defendant was not negligent in the particulars ■charged, and there is ample testimony to support the finding. It was not, therefore, error for the court-to' refuse the direction of a verdict under such circumstances or to refuse to strike out the answer to the first -question or to change the answer thereto'. The question of negligence is always for the jury to determine, unless the proof is so clear upon the subject that intelligent minds cannot fairly form different conclusions with respect to the matter. Block v. Milwaukee St. R. Co. 89 Wis. 371, 377, 61 N. W. 1101.

The motion to set aside the verdict and grant a new trial was addressed to the discretion of the court, and there is no ground for disturbing the ruling in that respect. It is not necessary to> refer to the evidence in detail. It is sufficient to sa.y that upon an examination of the record it is apparent that the trial court was fully justified in refusing to grant a new trial.

The amendment of the complaint asked at the conclusion •of the testimony was properly refused. It appears that the •only purpose of the amendment was to state a cause of action against the defendant for maintaining a nuisance in the public streets. This entirely changed the theory upon which the action had been brought and prosecuted. The issues •raised by the pleadings and to which the proof had been directed related to the negligence .of the defendant in not properly safeguarding or removing a charged wire which had fallen in the street. The ruling of the court upon the subject is fully supported by authority. Odegard v. North Wis. L. Co. 130 Wis. 659, 110 N. W. 809. In the case cited it is said (130 Wis. 676, 110 N. W. 814) :

“The general rule applicable to all actions is that the complaint must inform the defendant of the facts from which it ■is claimed his liability results, in order that he may prepare to mate his defense advisedly. A plaintiff should not be allowed to charge negligence in one respect and upon the trial prove negligence in an entirely different respect.”

We conclude, therefore, that there was no error in the rulings of the court appearing upon this record.

By the Court. — Judgment affirmed..