#### Nass, Respondent, vs. Schulz, Appellant.

*November 27*

December *15, 1899.*

*Appeal: Instructions to jury: Material error: Presumptions: Fires: Negligence.*

1. Where an issue of fact is submitted to the jury, it raises a presumption that there was evidence from which an inference could reasonably have been drawn either way in regard to it, which justified correct instructions as to the law applicable thereto; and the materiality of the issue, and the fact that it was submitted to the jury for determination, satisfies all calls for affirmative showing of prejudicial error, and if the instructions in regard to such issue were erroneous, error may be successfully assigned on exceptions to such instructions, even though the evidence in the case is not preserved and made a part of the record by a bill of exceptions.

2. In an action for a loss alleged to have been caused by the negligence of defendant in starting a fire on his premises and permitting it to spread to the premises of the plaintiff, an instruction to the jury,, in effect, that whether the acts of plaintiff were negligent or not was governed by what would be the ordinary usage and custom that people observed, in the use of fire, with regard to their own surroundings, as well as the surroundings of their neighbors, is *Held*to be materially erroneous, in that the abstract standard of ■ care, given as the test, was not confined to “such care as the great mass of mankind ordinarily exercise,” and because such standard was not made correct, relative to the particular state of facts, by adding “under the same or similar circumstances.”

A-pireat, from a judgment of the circuit court for Lincoln county: W. 0. SilveRthobn, Circuit Judge.

*Reversed.*

*147Action to recover compensation for loss alleged to have been caused to plaintiff by negligence of the defendant in starting a fire on his premises and permitting the same to spread to the premises of the plaintiff. Whether defendant was guilty of want of ordinary care in starting the fire or in faffing to prevent its spread to the plaintiff’s premises, were the chief questions in controversy. The subject was submitted to the jury for determination on the evidence, under instructions regarding the legal test of ordinary care, which instructions were excepted to, as were also other instructions on other branches of the case. The jury rendered a verdict in plaintiff’s favor for $147. Defendant’s counsel moved the court to set aside the verdict and grant a new trial for errors in the judge’s charge, which motion was denied and the ruling duly excepted to. Defendant appealed from the judgment rendered on the verdict. The bill of exceptions contains the judge’s charge and the exceptions thereto, and other rulings above, referred to, but does not contain the evidence.

For the appellant there was a brief by *Yam, Heolce <& Smart,*and oral argument by *K M. Smart.*

*M. G. Hoffmcm,*for the respondent.

Marshall, J.

Can error be successfully assigned on exceptions to' instructions if the evidence in the case be not preserved and made a part of the record by a bill of exceptions ? That question is met with at the threshold of our consideration of this appeal. To sustain the negative of the proposition it is suggested by respondent’s counsel that error is always presumed against in appellate administration, and error must be made to affirmatively and clearly appear, and that it at least may, reasonably, have influenced the final result, or be deemed harmless and the judgment be sustained. Such is the law according to the uniform decisions of this and other courts, and the statute as well. Sec. 2829, Stats. *1481898, provides that at every step of an action the court shaLl disregard any error or defect in the proceedings which does not affect the substantial rights of the adverse party. That has been well characterized as a beneficent statute which may properly be invoked to cover and render harmless a multitude of errors which manifestly do not affect the final result of a judicial controversy. However, the salutary rule does not apply to the situation before us, because harmful error does affirmatively appear, if the challenged instructions were erroneous.

The law regarding the degree of care which the defendant was in duty bound to exercise was of vital importance on the trial. Defendant was charged with liability for a breach of duty, and whether he was guilty or not, assuming that he was responsible for the fire, depended upon the degree of care which his duty, under, the circumstances, called for. In the absence of coi’rect instructions, manifestly the jury were quite liable to go astray and not respond the vital issue in the case intelligently or correctly. Thus, it is easily shown that instructions on the subject of ordinary care were material. We cannot assume that they were immaterial because the evidence may have been conclusive as to defendant’s negligence, for the fact that the issue was submitted to the jury overcomes the presumption against error and.raises a presumption that there was evidence from which an inference could reasonably have been drawn either way in regard to it, and which justified correct instructions as to the law applicable thereto. The materiality of the issue and the fact that it was submitted to the jury for determination satisfy all calls for affirmative showing of prejudicial error, if the instructions in regard to such issue were erroneous. Our attention is called by respondent’s counsel to *Paine v. Smith,*32 Wis. 335, as authority to the point that instructions in no case will be considered in the absence of evidence, but it is really authority for the con*149trary view. It is said in the cited case, and others on the same line, that in the absence of evidence it will be presumed that there was evidence to justify the instructions given. The court was speaking of proper instructions. The idea was, that in the absence of the evidence from the record it will be presumed that there was evidence given on the trial calling for instructions on the subject covered by the charge. Hence, if they were proper, error could not be assigned on a supposed absence or insufficiency of evidence to justify them. The same presumption, as to the existence of evidence must necessarily arise where the record shows that a particular rule of law was material and the trial court attempted to instruct the jury in regard to it. It must be assumed, then, that there was conflicting evidence on such subject, produced on the trial of this case, or conflicting, reasonable inferences from undisputed evidence, or both. The court so held in *Darling v. Conklin,*42 Wis. 478. Respondent’s counsel suggest that what was there said was *obiter,*overlooking the fact that the language of the opinion is the same as in *Paine v. Smith, supra,*which is cited to support the counsel’s contention, but which does not, as we have seen. Counsel upon both sides seem to have overlooked *Hamlin v. Spaulding,*27 Wis. 360, where it was expressly held that when the bill of exceptions shows an erroneous instruction on a material point and does not contain all of the evidence, the judgment must be reversed. If that case had been discovered the question, presented with much care upon both sides upon the theory that it was something entirely new, would have been shorn of its supposed novelty. In the *Hamlin Case,*Mr. Justice PaiNE said, in substance, where the bill of exceptions purports to contain all the evidence, and the verdict is right on such evidence, the court will affirm the judgment notwithstanding erroneous instructions; but where the instructions are inaccurate, as applicable generally to such an action, and the evidence is not all before the court, the judgment should be reversed.

*150What has been, said requires consideration, of tbe following instruction to tbe jury covering tbe subject of ordinary care. It was duly excepted to and preserved in tbe bill of exceptions. “Now as tó whether it was negligence on tbe part of tbe defendant to set tbe fire or allow it to be set, and then permit it to go on and burn without being extinguished, is tbe question for you to determine as to whether that was negligence or not, and it is governed by what would be the ordinary usage and custom that people observe in tbe use of fire with regard to their own surroundings as well as tbe surroundings of their neighbors.” That is incorrect in that tbe standard of care given as tbe test is not confined to such as tbe great mass of mankind ordinarily exercise. Such expressions as “ persons ” or “ a person ” or “ people ordinarily use,” have been uniformly condemned by tbe courts as giving an incorrect standard by which to measure tbe conduct of a person charged with actionable negligence. *Duthie v. Washburn, 87*Wis. 231; *Hennesey v. C. & N. W. R. Co.*99 Wis. 109; *Paris, M. & S. P. R. Co. v. Nesbitt,*38 S. W. Rep. 243; *St. Louis S. W. R. Co. v. Rice,*29 S. W. Rep. 525; *Missouri, K. & T. R. Co. v. Wylie,*26 S. W. Rep. 85. Tbe language in tbe *Duthie Case*was, “ Such care as people ordinarily use under the same circumstances.” It was more accurate than tbe words of tbe charge under *consideration,*— “A custom that people observe in regard to their own surroundings as well as tbe surroundings of their neighbors,” in that tbe expression “ people ordinarily use ” and tbe expression *“*ordinary usage and custom of people ” are substantially identical, while tbe former was correctly confined to tbe particular circumstances of the case, or similar circumstances, while tbe latter was not so confined. Tbe rule is so elementary that ordinary care, as applied to tbe particular case, is such care as tbe great mass of mankind ordinarily use in tbe same or similar circumstances, that there is no reasonable excuse for not stating it correctly. Care should be taken to give tbe correct standard in the *151abstract, and to apply it relatively to tbe particular facts. Such expressions as “ such care as a person or persons of ordinary care ordinarily exercise,” or *“*such care as men of average prudence or the great mass of mankind ordinarily exercise,” are right as abstract propositions, but to render them correct relative to a particular state of facts the element should always be added of *“*under the same or similar circumstances.” What would be considered ordinary care under one state of circumstances is by no means necessarily such care under different circumstances. The degree of danger, the character of the injury to be apprehended from a failure to exercise proper care, and all the circumstances of the situation are to be considered; so, in stating to the jury the law governing the subject, the trial court should say, in effect, and by clear and unmistakable language, that the standard by which the conduct of the person charged with violating his duty, as regards the personal safety of others, or their property, is to be measured, is such care as the great mass of mankind ordinarily exercise under the same or similar circumstances. The latter element is of as much significance as the essential element in the proposition of law in the abstract, that ordinary care is the care of an average prudent man. All decisions on the subject in this court are so harmonious that no mistake in regard to it ■ought reasonably to occur. *Ward v. M. & St. P. R. Co.*29 Wis. 144; *Wheeler v. Westport,*30 Wis. 392; *Hammond v. Mukwa,*40 Wis. 35; *Griffin v. Willow,*43 Wis. 509; *Prideaux v. Mineral Point,*43 Wis. 513; *Bloor v. Delafield,*69 Wis. 273; *Cremer v. Portland,*36 Wis. 92; *Jung v. Stevens Point,*74 Wis. 547; *Wall v. Highland,*72 Wis. 435; *Duthie v. Washburn,*87 Wis. 231; *Hennesey v. C. & N. W. R. Co.*99 Wis. 109.

It is so manifest in this case that the error, which must work a reversal of the judgment, occurred from the practice of giving oral instructions, that it seems proper to suggest *152that, unless a trial judge can, with reasonable certainty, state orally, with accuracy and definiteness, the law as he understands it, and grasp the subject in hand as well in giving instructions that way as by the more deliberate and careful method of reducing what he desires to say to the jury to writing, the latter method should be adopted. It is not un-frequently the case that a person, learned in the law, capable of administering the important legal duty of instructing juries with a high degree of certainty, if only pains were taken to deliberately and thoughtfully reduce the instructions to writing before giving them, is liable to commit many errors of a serious character in regard even to elementary principles by the practice of giving oral instructions. The former method is much more laborious, but a high regard for a safe, economical, and speedy administration of justice will suggest the adoption of the safer practice, especially in cases involving matters of any considerable importance, and cases where important legal principles are required to be stated to the jury. A general adoption of the practice here suggested will lessen the number of reversals by this court to a considerable degree, and prevent much unnecessary delay in remedying wrongs.

*By the*Oowt.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.

BaRdeeN, J., took no part.