153 Wis. 92 | Wis. | 1913
1. It is first insisted by counsel for appellant that tbe court below erred in overruling defendant’s motion for nonsuit made at tbe close of tbe plaintiffs’ evidence. Tbis contention is based mainly upon tbe proposition that it appeared from tbe plaintiffs’ showing that tbe rules' of tbe lighthouse board respecting lights to be maintained upon tbe bridge under authority of act of Congress were not’complied with. It is contended that tbe regulations of tbe lighthouse board have tbe force of a federal statute and must be recognized by the court as tbe law. It is conceded that tbe lights prescribed by tbe lighthouse board were not maintained upon tbe bridge. Under repeated decisions of tbe federal courts in admiralty cases it has been ruled that where such lights have not been maintained, and a collision occurs, it is incumbent upon tbe party in default to show that tbe absence of such lights not only did not but could not have caused tbe injury. Smith v. Shakopee, 103 Fed. 240; The Pennsylvania, 19 Wall. 125; Belden v. Chase, 150 U. S. 674, 699, 14 Sup. Ct. 264; The Martello, 153 U. S. 64, 14 Sup. Ct. 723. These decisions of federal courts arising on questions depending upon acts of Congress are entitled to weight with tbis court, if not controlling.
Tbe case was tried in tbe court below upon tbe law as laid down in tbe foregoing federal decisions, as appears from tbe able opinion of tbe trial judge in tbe record. As will be seen from tbe foregoing decisions, tbe federal courts have quite uniformly held to a strict adherence to tbe requirements of tbe law in relation to lights and signals, and that no exception can be made unless, as is said, “tbe breach of regulations could not have been a contributing cause of tbe disaster.” But if the default in obeying regulations be not a contributing cause, then such default will not defeat recovery. The Fannie, 11 Wall. 238.
There is evidence on tbe part of tbe plaintiffs tending to show that tbe captain in charge of tbe Carolina, at tbe time
2. It is contended that the court erred in denying defendant’s motion for a directed verdict at the close, of all the evidence. In addition to the point that the absence of lights required by the lighthouse board was ground for a nonsuit, counsel for appellant further insist that upon all the evidence a verdict should have been directed for defendant, and an attempt is made to support this contention on two grounds, which will be briefly referred to.
Eirst, it is said that several witnesses testified that the government lights were much better than those maintained on the bridge, and that the evidence shows that the absence of government lights contributed to bringing about the collision. Second, it is insisted that the evidence on the part of appellant establishes beyond controversy that the whistle on the Carolina was blown as a signal for the opening of the bridge, and that -this fact is established by the positive evidence of twelve witnesses, while the evidence on the part of the respondents is negative, therefore there was not sufficient evidence upon the point to carry the question to the jury, but
The first of these propositions as regards government 'lights we consider the more serions question, but we are convinced that there is sufficient basis in the evidence to warrant the jury in finding that the absence of such lights did not and could not have contributed to the collision.
True, the evidence shows that the government lights were better than those maintained on the bridge; but the evidence also tends to show that the captain in charge of the steamer discovered that the bridge was not open when 200 feet from it, and that he could stop the vessel when going at the rate of two and one-half miles an hour in a distance of 150 feet, and that the steamer was going at the rate of two and one-half miles an hour when within two or three hundred feet of the bridge; that the lookout reported to the captain when about 500 feet from the bridge that it was not open. The mere fact that the government lights were better and would show more plainly the situation is not the important question, but whether the lights maintained upon the bridge, in connection with the captain’s knowledge of the situation and the fact that he knew that the bridge was not open in time to have avoided the collision, were sufficient to warrant the jury in finding that the absence of the government lights did not and could not have contributed to the collision. Blanchard v. New Jersey S. B. Co. 59 N. Y. 292; The Wenona, 19 Wall. 41; The City of Washington, 92 U. S. 31.
Under the repeated decisions of this court, if there is any credible evidence which, if undisputed, would entitle the jury to find for the plaintiff, a verdict should not be directed for the defendant.
“The simple question is, whether the evidence in behalf of the plaintiff, had it remained undisputed, and giving it the most favorable construction it will legitimately bear, including all reasonable inferences from it, is sufficient to justify*98 a verdict in favor of the plaintiff.” Spensley v. Lancashire Ins. Co. 54 Wis. 433, 11 N. W. 894.
Moreover, we Rave the decision of the learned trial judge overruling the motion for a directed verdict and passing upon the sufficiency of the evidence. Deference is due to his conclusions involving the sufficiency of the evidence to carry the case to the jury. Nolan v. Kroening, 130 Wis. 79, 109 N. W. 963; Murdock v. B., D. L. & J. R. Co. 147 Wis. 100, 132 N. W. 979; McCune v. Badger, 126 Wis. 186, 105 N. W. 667; Slam v. L. S. T. & T. R. Co. 152 Wis. 426, 140 N. W. 30.
A very vigorous contention is made by counsel for appellant to the point that upon the showing made the jury could not find that the absence of government lights on the bridge in accordance with the regulations of the lighthouse board did not and could not contribute to the collision. We cannot agree with counsel in this position. Under the well established rule of this court, we think the evidence in favor of the plaintiffs, giving it the most favorable construction it will legitimately bear, including all reasonable inferences from it, is sufficient to support a verdict for the plaintiffs upon this question.
The jury were entitled to find on the evidence that the Carolina ran into the bridge without giving any signal, and that the captain had notice that the bridge was not open in time to have avoided the collision, and in fact had all the notice and knowledge that he would have had had the lights required by the lighthouse board been on the bridge. Under such circumstances it is clear that the motion to direct a verdict for defendant was properly overruled. Wis. F. L. Co. v. Bullard, 119 Wis. 320, 96 N. W. 833; Goldman v. Fidelity & D. Co. 125 Wis. 390, 104 N. W. 80; Lam Yee v. State, 132 Wis. 527, 112 N. W. 425; Ellison v. C. & N. W. R. Co. 143 Wis. 603, 128 N. W. 428; Kersten v. Weichman, 135 Wis. 1, 114 N. W. 499; Zentner v. Oshkosh G. L. Co. 126 Wis. 196, 105 N. W. 911.
“I can’t tell how fast he was going, as my mind was on the whistle. I was waiting to hear the whistle. ... If he had been going fast I don’t think it would have made any impression in my mind, as my mind was on the whistle. I did not release the lever and unlock the bridge because he did not blow for it, and I did not know he wanted the bridge open until he hit it.”
The testimony of Berg, under the well established doctrine of this court, was sufficient to raise a jury question as to whether or not the whistle was blown. Urbanek v. C., M. & St. P. R. Co. 47 Wis. 59, 65, 1 N. W. 464; Joannes v. Mil
We are convinced that the jury were entitled to find from the evidence that the whistle was not blown.
The jury answered the fifth question in the negative, thereby finding that there was no want of ordinary care on the part of the plaintiffs which contributed proximately to the collision with and injury to the bridge. On this question the court below charged the jury, in effect, that the absence of the' lights required by the lighthouse board raised a presumption of negligence, and that the law required the jury to find that the plaintiffs were guilty of contributory negligence because they did not have those lights, unless the testimony in the case satisfied the jury that the absence of such lights not only might not but could not in any way have contributed to the collision, and that unless they were satisfied to a reasonable certainty from the evidence that the absence of lights which the law required could not have contributed to the collision, they must answer the fifth question in the affirmative. No objection was made to the form of the verdict and no request made to submit any additional questions, and
By the Court. — The judgment of the court below is affirmed.