Mineral Point tribune. (Mineral Point, Wis.) 1869-1938, 1879-12-11
an embankment on the south side of

ll1nllS Oh the lIpH way WHICH eiludlptI-
ed travellers in the condition in which
it was suffered to be.
Ii you find there was not, it ends the
case for the defendant. If YOU find
there was, the next question will be (:
did the insutficiency cause the accident
to the carriage and the injury to Mrs.
PrideauX? II you find both of these
questions in favor of the plaintiff, the
next question will be: was she or the
driver in any degree wanting in ordi-
nary caution and prudence which caus-
ed or contributed to the injury? If
either Of them were, the plaintiffs case
fails, even though you may find that
the highway was not reasonably safe,
or that it was insufficient. Persons
who claim damages for the negligence
OF others or on account Of defective
highways while travelling i'll private
conVeyaHceS cannot recover If there
Was negligence amounting to any want
OF ordinary care upon the part of the
person claiming such damages, or upon
the part of the driver OF the private
conveyance in which such person is at
the time riding.
a word in relation to ordinary care
and prudence, and what is meant by
the term, and to prevent all miSappre-
tensions. if | shall use other terms,
such as proper caution and prudence or
want of it, or anything to that effect, |
shall mean ordinary caution and pru-
dence or the Want Of it. In its most
general sense, ordinary caution and
prudence may be defined to be such eau
ton and prudence rs persons of ordi-
nary care and prudence usually observe
as rules Of conduct in conducting their
business or affairs. TO be little more
specific, it is such as such persons usu-
ally observe under like or similar cir
cumstances, or III like or similar situa
tons, or BUSINESS, or pursuits. To be
still more specific III view of the testi
mony in this case, and its facts as
claimed upon either side, will define
it to be such care and caution as per-
sons Of ordinary caution and prudence
usually observe in driving or riding up
on highways situated rs this was.
AS applicable to the driver, the mater
ial enquiry or conclusion for you, after
you have settled what the facts are
from the testimony. is: was he or not,
at the time Of the accident, driving as
persons of ordinary caution and pru-
dence would usually drive in view of
the time of the day or evening he was
driving. in view Of such previous ac-
Quaintance as you may find he had
with the road, and in view of its being
located where it was in the city Of Min
eral Point, and such other circumStan-
ces and differences from testimony as
will naturally occur to your minds. |
close what | have to say upon this
branch Of the case, by saying that ordi-
nary caution and prudence is a higher
degree of caution than the careless
usually observed under similar circun-
stances. 1t is less than that which
persons of great caution and prudence
usually observe under like circum-
stances, in other words, more caution,
than slight care less than great and
extraordinary care more than the
careless and Indifferent observe. and
less than persons OF great and eytraor
binary caution and prudence observe.
submit the question already allud
ed to, to you upon the rules already
given without any attempt to be more
minute because presume that you are
ut least men OF ordinary intelligence
and observation, and that ii you have
not had much experience in building
and constructing Highways, you have
had in travelling them and that when
YOU have fixed in your mind how this
road WAS in reference to the condition
ut the south side of the road YOU will
be able to draw a conclusion as TO
whether or not the street was suffered
to be in an unsafe condition. 1t Is an
observation which | hardly need make,
that it will not be sufficient that YOU
find it reasonably safe or sufficient for
safety Of travellers travelling with ordi-
nary care in the day time, but safe for
those driving with ordinary care at
such times OF days or evenings and un-
der such circumstances as You find 1t
was being travelled 10y the parties in
question.
Upon the other main question referred to,
whether the driver was or not guilty OF want
of ordinary care at the time and under the
circumstances | may remark that when all
the circumstances surrounding transaction
are ascertainCd or known, minds OF ordinary
Intelligence aud experience will usually draw
correct conclusions as to whether or not the
person 10 whom want of ordinary care is i'm
putcd was guilty Of it or not,
II NAV be thought that The person whose
conduct is being examined was Negligent IN
some slight degree, or OF slight negligence, or
did not Go what persons OF great caution
would have done. That is not enough to place
him in such fault as prevents recovery on
account OF negligence upon his part causing or
contributing to an accident and injury. Ills
negligence must pc grcatog than this he must
pass The boundary line so to speak, between
slight negligence and the want of ordinary
care, and be guilty in some degree OF the lat
ter If he does SO he is in such fault that
those who have 10 rely on his exercising oral
nary care for his and their safety cannot re.
enNNr.