Butteris v. Mifflin & Linden Mining Co., 133 Wis. 343

133 Wis. 343 | Wis. | 1907

SiebeckeR, J.

The order setting aside the verdict and granting a new trial states that it is grounded upon the affidavits of the jurors before whom the action, was tried, and that the order is made because the answer to question 7 of the special verdict, finding the deceased guilty of a want of ordinary care which contributed to cause his death, is not as four jurors “intended it should be,” and that they “did not intend to return a verdict finding” this fact. An examination of the affidavits discloses that they do not present a situation analogous to that in the case of Wolfgram v. Schoepke, 123 Wis. 19, 100 N. W. 1054. "There the jury, in answering a question in the special verdict, through inadvertence inserted an affirmative answer instead of the negative one upon which all of the jurors had agreed and which they supposed was inserted in the verdict before its delivery into court. It is there held that the trial court properly received and considered the jurors’ affidavits as evidence of what was in fact the verdict agreed upon by the jury, for the purpose of determining whether the verdict as returned into court correctly expressed the verdict found by the jury. In arriving at this conclusion the court in no way departed from the well-recognized rule that jurors cannot impeach their own verdicts. The court there observed:

“Is the written paper filed, or the agreement which the jury reach, the verdict? We think the latter is what is intended when we say the jurors cannot impeach it. The former, like most records or writings, is but the expression or evidence of some mental conception. Hence it may well be said that a showing that such writing is not correct is not impeachment of the verdict itself.”

The facts of the instant case in no way tend to establish such a case. Here the four jurors assert that through mistake they assented to a verdict which they did not intend, and by their own affidavits they seek to impeach it by showing that it is not the verdict they intended to render or agree to. We cannot conceive bow the evidence adduced can bave any effect other than to impeach the verdict itself. In no aspect' of the case does it tend to correct a mistake in expressing the verdict actually agreed upon by all the jurors. The material statements in the affidavits are to the effect that these jurors had a different intention from the one expressed in the verdict, and that they were mistaken as to the effect of the finding the jury had actually agreed upon. But either statement results in an impeachment of the verdict actually agreed upon. This is not a correction of their verdict, but is an impeachment of it such as the law does not permit.

“The general rule is very ancient, and often reiterated, that the statements of the jurors will not be received to establish their own misconduct or to impeach their verdict.”

The question was fully discussed and the authorities collected in Wolfgram v. Schoepke, supra. See, also, Owen v. Portage Tel. Co. 126 Wis. 412, 105 N. W. 924.

Respondent asserts that the trial court acted within its discretionary power in awarding the new trial and that its action can only be disturbed when it appears that the court abused such discretion. We find nothing in the record to warrant the inference that the new trial was granted within the discretionary power of the court. The record is clear that the motion was granted solely because of an alleged mistake of the jurors in rendering their verdict. However, there is another reason why the motion for a new trial cannot stand upon this ground. The appellant moved for judgment upon the verdict dismissing the complaint. The verdict includes a finding that the deceased was guilty of a want of ordinary care contributing to cause his death. In passing upon this motion it devolved upon the court to look into the evidence and determine whether such fact was established by the un-contradicted evidence, and, if this was the state of the evidence, then appellant would be entitled to judgment as a matter of law, irrespective of what the evidence might establish as to all the other issues in the case. The evidence in the case upon this issue is clear and uncontradicted and is to the effect that the deceased as a miner had heen in the defendant’s employ continuously for a number of years up to the time of the accident, and had acted as shift boss in control of the men and the work in the mine; that he was informed of defendant’s rule in the conduct of its Business that no person working in the mine was to go up the shaft while loaded cars were Being operated; that he instructed the men under him not to follow such a car up the shaft; and that he informed them of the danger incident thereto. It is also established that at the time in question he followed a loaded car up the shaft, and that while he was thus engaged the car Became detached from the draw cable, returned down the shaft, collided with him, and produced his death. Erom these facts But one inference can Be. deduced, namely, . that he knowingly and voluntarily placed himself in a position of danger and in violation of a rule of the defendant; and in law But one conclusion is permissible, namely, that decedent’s want of care contributed to cause his death.

It is contended by respondent that the decedent was absolved from any negligence attributable to this conduct because the return of the car had been delayed for so long a time that he was justified in following it up the shaft to ascertain whether it had been derailed. Under the facts and circumstances it cannot be reasonably said that he was justified in such a course of conduct. It does not appear that such had been the practice before this time, nor was it necessary for him to do so in order to communicate with the operator of the mine outside and thus learn the position of the car on the track. After the loaded car had left his place of operation at the foot of the mine the danger of following it was a continuing one until it should return or until he was informed that there was no danger from the car. The state of the evidence leaves no ground for dispute but that dece■dent was guilty of a want of care in disregarding the defendant’s rule for the conduct of its business and in voluntarily and knowingly placing himself in the dangerous position where the car struck him, and that his conduct in these respects contributed to cause his death. Erom this it results as a matter of law that decedent was guilty of contributory negligence. Hulien v. C. & N. W. R. Co. 107 Wis. 122, 82 N. W. 710; Buckmaster v. C. & N. W. R. Co. 108 Wis. 353, 84 N. W. 845; Chybowski v. Bucyrus Co. 127 Wis. 332, 106 N. W. 833.

The order denying appellant’s motion for judgment on the verdict is not appealable; hence there is nothing to review as to this order. Mills v. Conley, 110 Wis. 525, 86 N. W. 203.

By the Court. — The order appealed from granting a new trial is reversed, and the cause remanded for further proceedings according to law.