Pumorlo v. Merrill, 125 Wis. 102. This motion was and because the damages were excessive. denied, and the court thereupon ordered judgment for the plaintiff upon the special verdict for $3,000 damages and the costs of the action. This is an appeal from such judg ment. For the appellant there were briefs by John Van Hecke, attorney, and E. M. Smart and E. E. Browne, of counsel, and oral argument by Mr. Van Hecke. For the respondent there was a brief by Curtis & Reid and F. J. Smith, and oral argument by Mr. A. H. Reid and Mr. Smith. SIEBECKER, J. Error is assigned upon the admission of testimony tending to show the defective condition of the sidewalk for some weeks prior to the day of the accident in the immediate vicinity of the hole complained of as bearing on the question of notice to the city officers of the defective condition of the sidewalk. It is quite clear from the evidence that the defect found by the jury consisted of a hole extending from the center stringer to the side of the walk and that it was due to the worn and decayed condition of the plank. The evidence tended also to show that other planks in close proximity to the defect found had been much worn, decayed, and broken for a considerable time before the accident. der these circumstances the bad general condition of the walk would attract attention and lead to the discovery of the defect in question. This evidence was competent for this purpose, and by the instructions of the court was properly confined to this question in the case. Shaw v. Sun Prairie, 74 Wis. 105, 42 N. W. 271; McHugh v. Minocqua, 102 Wis. 291, 78 N. W. 478; Lyon v. Grand Rapids, 121 Wis. 609, 99 N. W. 311. Un Defendant submitted to the court a request declaring that in cases of this nature the burden of proof was upon the plaintiff to establish by a preponderance of the evidence the Pumorlo v. Merrill, 125 Wis. 102. affirmative of every issue involved in the case except as to the question of contributory negligence of the plaintiff. The request was not given as submitted, but the court instructed the jury as to such issues that in answering the several questions submitted the jury must determine the material issues involved in accordance with the effect and weight of the whole evidence carefully and impartially considered; and the court further instructed them in connection with the special questions covering these issues, whereon plaintiff had the burden of proof, and wherein an affirmative finding would establish defendant's liability, that to warrant them in so answering such questions they must be satisfied that their answers were sustained by the weight of the evidence or by the fair weight of the whole evidence. Bouvier, in speaking of the use of the expression "weight of evidence," says it signifies that the proof on one side of a cause is greater than on the other. It is in this sense that the language of the trial court was used in the instructions, and it must have been so understood. This was, in effect, the same as if the instruction as to the burden of proof had been given as requested. Error is assigned in respect to the court's definitions in its instructions of the meaning of the terms "reasonable diligence" and "ordinary care." The court instructed the jury that: "The words 'ordinary care'. . . mean such prudence and care as an ordinarily careful person would use under the same or like circumstances;" and again, in another part of the charge: "The reasonable diligence here mentioned required of public officers of a city having charge of its public. streets and walks means such diligence as like officers with. like responsibilities usually and ordinarily employ in the discharge of their duties." The phraseology employed is not as clear and as apt as some which might have been chosen from definitions of these terms in the decisions of this court, but the words convey the Pumorlo v. Merrill, 125 Wis. 102. idea embodied in the various definitions of the terms approved by this court. Instances of such definitions are: "Such care as persons of ordinary care and prudence observe in and about their affairs," or "such care as the great mass of mankind, or the majority of mankind, observe in the transactions of human life" (Dreher v. Fitchburg, 22 Wis. 675); such care as "a person or people of ordinary care and prudence ordinarily use, or the great mass or majority of people observe" (Duthie v. Washburn, 87 Wis. 231, 58 N. W. 380); "such care as the great majority of men would use under like or similar circumstances" (Olwell v. Milwaukee St. R. Co. 92 Wis. 330, 66 N. W. 362); "such care as the great mass of mankind ordinarily exercise under the same or similar circumstances" (Nass v. Schulz, 105 Wis. 146, 81 N. W. 133); "such care as a man of ordinary care and prudence would have exercised under circumstances like those disclosed by the testimony in this case" (Hanlon v. Milwaukee E. R. & L. Co. 118 Wis. 210, 95 N. W. 100). In Schrunk v. St. Joseph, 120 Wis. 223, 97 N. W. 946, the test laid down is this: "Would a person of ordinary intelligence and prudence, under the same or similar circumstances, ordinarily so conduct himself?" and in the recent case of Rylander v. Laursen, 124 Wis. 2, 102 N. W. 341, which treated of the degree of care required of a man using appliances in a dangerous business, the trial court's definition of it as the care "commonly and usually used by men engaged in the same or similar business" was held to be erroneous, and it was stated that "the true test is the use of such appliances as are ordinarily used by men of ordinary care and prudence, or by men generally engaged in the same or similar business under the same or similar circumstances." The result to be deduced from all these various forms of expression is, as stated in Dehsoy v. Milwaukee E. R. & L. Co. 110 Wis. 412, 85 N. W. 973, that ordinary care is that degree of care "which the great mass of mankind, or the type of that mass, Pumorlo v. Merrill, 125 Wis. 102. the ordinarily prudent man, exercises under like circumstances." As an abstract proposition it is such care as the great mass of mankind generally exercise; and when it is sought to apply this degree of care to the affairs of life it must be applied to the same or similar circumstances. This standard excludes as erroneous the idea that it is such care as any person or persons would exercise under similar circumstances, because such care may not be the care an ordinarily prudent person generally exercises under the same. or similar circumstances. As stated in Nass v. Schulz, 105 Wis. 146, 81 N. W. 133: "Such expressions as 'persons' or 'a person' or 'people ordinarily use' have been uniformly condemned by the courts as giving an incorrect standard by which to measure the conduct of a person charged with actionable negligence." If the instructions before us came within this class we would necessarily condemn them as prejudicially erroneous. The question, then, arises whether these instructions as given by the court embody the ingredients essential for informing the jury as to what constitutes ordinary care and reasonable diligence as applied to the facts and circumstances of this case. It is true the court did not adopt the form of expression which has been repeatedly approved by this court, and such departure is to be condemned as not the best and safest practice. When a particular form of expression for the enunciation of a rule of law has been sanctioned and approved as correct and best adapted for conveying the idea to a jury it should be adhered to by the trial courts to avoid the liability and danger of errors which are very liable to follow the use of different terms and a new phraseology. The terms employed in the above instruction as defining "ordinary care" are, we think, free from fault and are within the strict limits of the decisions. In speaking of the reasonable diligence required of city officers having charge of its public streets and walks, the court said it "means such diligence as Pumorlo v. Merrill, 125 Wis. 102. like officers of like responsibilities usually and ordinarily employ in the discharge of their duties." These terms, in their ordinary and usual significance, convey the idea that the reasonable diligence required of them is of that degree usually and ordinarily employed by such city officers as a class, or the generality of them, in the discharge of like responsibilities; that is, the diligence ordinarily employed by them in performing the same or similar duties. The language does not limit the standard of diligence to that which any officer or officers would ordinarily use, but it means the diligence used by the majority of such officers, or by them generally as a class, under the same or similar circumstances. Though the expression is somewhat involved in obscurity, and may be said to be erroneous in the sense that it is not framed in the usual and accepted terms approved by this court on the subject, yet we cannot say that this is harmful error, because the jury in all reasonable probability understood it in its correct sense as above indicated. In its final analysis this is the fair and natural meaning to be given the context of this instruction, and it and the one given by the court defining ordinary care are in form and substance as required and approved by the foregoing adjudications of this court. An exception is urged to the refusal of the court to give the instruction as to the rule of "Falsus in uno, falsus in omnibus." To warrant the giving of such an instruction there must be a sufficient basis in the evidentiary facts and circumstances adduced as tends to show that there was wilfully false swearing. Whether such a rule applies to the consideration of the evidence of a case is primarily a question for the trial court and not for the jury. It therefore devolves upon the trial court, before ruling on such a request, to determine whether, under the facts and circumstances, there is any evidence tending to show that a witness or witnesses whose evidence is to be submitted to the jury did wilfully |