121 Wis. 554 | Wis. | 1904
The first exception urged is that the court erred in submitting the case to the jury upon the evidence. It is contended that the plaintiff arose from her seat and got off the car while it was in motion, and that the evidence leaves no room for conflicting inferences upon this question. This claim is based upon the assumption that plaintiff’s testimony and that of her mother, tending to show that she had nearly gotten off the car while it stopped, is against the reasonable probabilities and the overwhelming preponderance of the evidence.
From the testimony of plaintiff and her mother it appeared that plaintiff gave notice to the conductor that she wished to get off the car at the Partridge drug-store crossing, this being the north crossing of Gillett street; that the car stopped; that she arose from her seat, followed two passengers out of the door to the platform, and was in the act of .alighting from the last step when the car started, and that this caused her to fall onto the street within a few feet of this crossing. This evidence is clearly contradicted by the testimony of the two conductors and five other witnesses who observed the accident. The finding of the jury was affirmed by the trial court in passing upon the motion for a new trial. The evidence in itself is not so inherently improbable, nor so completely overcome by the testimony of the other witnesses and the facts and circumstances of the case, as to jus
The court gave the jury the following instruction:
“But if you believe that a reasonable stop was made — that' is, a stop for a reasonable length of time — at or near Gillett street, and that she had given no notice or signal that she desired to get off at this place, and shall further believe that afterwards, after it stalled, it occurred to her that she ought to have gotten off at this place at Gillett street or where it stopped, and shall believe that she attempted to go out of’ the car while it was in motion and after it had started again, and shall believe that by reason of its being in motion Was-the cause of her falling off, then she cannot recover in the-action.”
It is urged that this is misleading, in that the instruction-includes elements wholly immaterial and not necessary to be passed upon by the jury to acquit defendant of liability. The-court had given instructions upon this branch of the case in very positive and unqualified terms, stating that, if respondent undertook to leave the car after it had started and was. in actual motion, she could not recover in the action. Different parts of the charge state the rule unqualifiedly that-,, if a passenger undertakes to alight from a car while in motion and is injured in getting off the car, he has no claim against the street car company for any damages so sustained. Taking these parts of the charge in connection with the part.
By the Oowrt. — The judgment of the circuit court is af--Rrmed.
