Adams v. Chicago & Northwestern Railway Co.

89 Wis. 645 | Wis. | 1895

PiNNey, J.

The evidence on the part of the plaintiff, if believed by the jury, is clearly sufficient to sustain the verdict. It is not disputed but that the plaintiff was injured, on returning from the outhouse, by Ms foot and leg going down in a hole or space between the walk and the first of the steps leading from the walk to the depot platform. He revisited the place of the accident after his injury and before the steps and platform had been rebuilt, and his testimony was to the effect that it was dark at the time, and the space or hole between the walk and the steps was, he thought, ten inches, and it was covered with snow; that it was wide enough to admit his foot and leg, and deep enough so that he fell forward and fractured his leg; that the first step raised about eight inches from the walk. And some of the evidence on the part of the defendant tends to sustain this fact, and to cast doubt upon the 'accuracy of the sketch produced in evidence, in respect to which some of defendant’s witnesses testified. According to this sketch, the space between the walk and first step was two and one-half inches, and the rise wras three and one-quarter inches, but the measurements from which the sketch was made had, it was said, been lost. It seems hardly probable, if possible, that the accident could have occurred in the way the plaintiff describes it if these were the trae measurements. No other measurements appear to have been made, but two models were produced, said to represent the situation, at the time, and the one produced by the defendant shows that the rise to the first step was six and one-quarter inches, instead of three and one-quarter, and the party who made it testified that he had been directed to make it as he did; but neither of the models has been produced here, though much of the evidence relates to one of them, and is not very clear by reason of its absence.

There is, under all the evidence, nothing to render the account of the plaintiff highly improbable as to the manner in which the injury occurred, as there was in the case of McCoy v. Milwaukee St. R. Co. 82 Wis. 215, in view of all the surrounding circumstances. It is true that it may fairly be said that there seems, to be quite a preponderance of evidence against the plaintiff as to the width of the space between the walk and the steps, and as to the depth of the hole between the two, if there was such a hole. Some of the defendant’s witnesses think that the walk extended under the first step, but they all testify as to their memory of a condition of affairs that had ceased to exist about six months after the accident and over a year before the trial. The plaintiff testifies that the hole was ten inches deep, and that the walk was raised above the ground, and that, when he returned after his injury, he put his crutch down into it. Most of the defendant’s witnesses say that there was no hole there, or that they do not remember any; but two of them at least think there was a depression or hole, of no very particular significance, but rather under the step. Under the circumstances disclosed by the record it was a question for the jury whether they ought to believe the plaintiff’s testimony as against a majority of witnesses against it, and when in such case there is evidence to support the findings of the jury they will not be disturbed. Questions of conflict of evidence and credibility of witnesses are for the jury.

It may be that, in the exercise of sound discretion, the circuit court ought to have granted a new trial; but that court had opportunities of judging of this matter which we do not possess, and we cannot say that the refusal to grant a new trial was an abuse of discretion. Our observation of cases brought to this court has satisfied us that it would be in the interests of a wise and satisfactory administration of justice if the trial courts should exercise their power tó grant new trials, in view of their intimate knowledge and familiarity with the facts of cases as they come before them, much more frequently than they are accustomed to do, instead of leaving parties to seek a remedy here against verdicts that are claimed to be contrary to the real merits and against the decided weight of evidence.

The case of McCoy v. Milwaukee St. R. Co. 82 Wis. 215, was peculiar and exceptional, but the rule of this court, in cases such as we are considering, against interfering to set aside a verdict, is too well settled to require reference to the numerous decisions on the subject, among which Cunningham v. Brown, 44 Wis. 77; Ely v. Daily, 40 Wis. 53; Van Doran v. Armstrong, 28 Wis. 236; Bierbach v. Goodyear R. Co. 54 Wis. 209; Larson v. L. S. T. & T. R. Co. 79 Wis. 201; Snyder v. Wright, 13 Wis. 689; Smith v. Coleman, 77 Wis. 343; Walker v. Duncan, 68 Wis. 624; Shekey v. Eldredge, 71 Wis. 538, — -may be mentioned. The result is that the judgment appealed from should be affirmed.

By the Court.— The judgment of the circuit court is affirmed.