Beggs v. Chicago, Wisconsin & Minnesota Railroad, 75 Wis. 444

75 Wis. 444 | Wis. | 1890

Taylob, J.

After a careful reading of the evidence, we are satisfied that the learned circuit judge was right in refusing the nonsuit, and in refusing to direct a verdict for the defendant. Upon the evidence there is no other probable cause for the fire except that it originated from coals and cinders on the-track of the defendant. There was a strong wind blowing directly from the track towards the barn, and a streak of burned grass from the railroad track to the barn. There was also evidence tending to show that coals and cinders had been deposited on the track at the -point in question shortly before the fire. In the absence of any other cause shown for the fire, there is a fair presumption that it was communicated from the coals on the track .of the company. At all events, it was a question for the jury to determine under all the evidence.

The objection to the evidence offered by the plaintiff, that other engines on other days had deposited coals and cinders on the track in the vicinity of the barn, may be admitted to have been well taken by the defendant, and that such evidence should have been excluded under the rule established by this court in Gibbons v. W. V. R. Co. 62 Wis. 548, and Allard v. C. & N. W. R. Co. 73 Wis. 168. Although the evidence given was improper and ought to have been excluded upon the objection of the defendant, still the judgment ought not to be reversed for that cause. The learned circuit judge took such evidence from the consideration of the jury before the evidence in the case was closed, and also instructed the jury, at the close of the evidence, that it should not be considered by them in the determination of the question of the defendant’s negligence.

When the defendant moved for a nonsuit, the court said, in the presence of the jury: “I have great doubts, and those have been growing ever since the trial commenced, in regard to the testimony of other engines’ depositing cinders at this point. Having admitted it before dinner, I thought I would let it all come in, because I could correct that part in the charge to the jury. My doubts have been all the time increasing as to the propriety of receiving the evidence. It is in, and can only be corrected by the charge to the jury. The case will have to rest, not as to other engines at other times depositing- cinders, but upon what proof there is that, upon that afternoon, shortly before the burning of the barn, engines were passing there, and that at the time of the fire, or immediately after, cinders were shown. There is evidence tending to show that there were cinders upon the track, and the grass leading from the railroad to the barn was scorched or burned. This burning raises, perhaps, a presumption that some of the engines passing at that time, just before the fire, left cinders upon the track, and the wind happening on that day to be in the right direction, and a stronger wind than usually occurred, sparks or fire were in some way communicated to the barn. I think in that view-there is a question of fact for the jury. The defendant’s motion is therefore overruled.” In his instructions to the jury the court said in-regard to this evidence: “In considering this case, gentlemen, you are to exclude from your consideration the evidence which was admitted here, under some doubt on the part of the court, in regard to these engines at other times depositing coal and cinders on the track, and confine your inquiry as to what occurred on that day, whether either of those engines deposited or dumped coal or cinders upon the track.”

If it be possible for the trial court to correct an error committed in permitting incompetent evidence to be once received during the course of'the trial, it seems to us that error was cured in this case. That such error may be cured is well established by authority and reason. In this case the jury could not have been influenced by the comments of counsel to the jury upon this incompetent evidence, in their arguing the facts to th,e jury, as the record shows that the learned circuit judge had, long before the testimony closed, notified the counsel and the jury that such evidence should not be considered by them. In that state of the case it would have been a gross breach of propriety on the part of counsel to comment to the jury upon such evidence, and it is quite certain that no comments were made by the counsel for the plaintiff to the jury upon such evidence. Had the counsel attempted any such improper course, the court would have promptly checked him, and if the court had not, it is evident that the counsel for the defendant would have promptly objected. Nothing of that kind appears in the case.

This case does not come within the suggestion made in Richards v. Noyes, 44 Wis. 609, 614, that it is too late to withdraw from the consideration of the jury improper evidence which has been submitted to the jury and commented on to them before it is attempted to be withdrawn. This case clearly comes within the rule of the cases cited in the opinion in Richards v. Noyes, supra, 614; Batchelder v. Batchelder, 2 Allen, 105; Brown v. Cowell, 12 Johns. 384; Selkirk v. Cobb, 13 Gray, 313; and Johannesson v. Borschenius, 35 Wis. 135. Under the instructions given to the jury in this case, and what was said by the court on the motion for a nonsuit, it appears to us very clear that the defendant was not prejudiced by the mistake of the court in admitting the improper evidence, which was afterwards so fully withdrawn from the consideration of the jury before the case was argued before them.

All the special instructions asked by the defendant to be given to the jury and which were refused by the court, were given in his general charge as clearly and as fully as requested by the instructions asked. The defendant has not therefore been prejudiced by the refusal to give them as drawn by him. All the points in the case were fully and fairly submitted to the jury in the general charge of the court. There was evidence to sustain the verdict, and the court properly refused to set aside the verdict and grant a new trial.

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