126 Wis. 334 | Wis. | 1905
“In considering the evidence with reference to an answer to this third question, you are instructed that the evidence of witnesses, one or more, to the effect that they passed over the sidewalk in question, and that they did not see any loose plank or planks, is negative in character, and is, in itself, entitled to comparatively little weight as compared to testimony of equally credible witnesses, if such there were, who testified to passing over said sidewalk at about the same time and found loose plank or planks, if such witnesses so testified.”
The general rule as to positivé and negative testimony is well understood. 3 Greenl. Ev. (16th ed.) § 315. But the mere form of the question put to the witness does not always determine whether his answer shall be regarded as positive or negative testimony. It depends more upon the opportunity, knowledge, and attention of the witness in regard to the particular fact about which he testifies. Thus it often happens that testimony which is negative in form may be really affirmative in essence and effect, within the real meaning and purpose' of the rule. This is well illustrated in numerous
By the Gowrt. — The judgment of the circuit court is affirmed.