120 Wis. 63 | Wis. | 1903
“It is true, the boy says he drove the team; but the presumption would be, in the absence of any evidence to the contrary, that he was acting there for his father. So the court will let the jury say, under all this evidence, whether they would believe the boy’s statement and his father’s — taking their manner on the stand — and let them pass upon it. . . . Every one would naturally look at it in a common sense view — that the boy came along with his father, driving -the team; that he acted as the servant and agent of his father. There is not a man in the courtroom who has heard the boy’s testimony but would think for a moment that the boy brought the father to town. They would say that the boy came along with his father. . . . Take the boy’s statement. He says he borrowed the team on this occasion. The father and son came here together; and, as I say, take these facts altogether— the fact that he lived there at home, and had driven out before with his father and other members of the family — the presumption would be, from these statements, that he acted for his father. . . . So, taking this transaction and these statements of their coming here, the court is going to let the jury say, under all this evidence, whether they would believe' this boy’s statement, and his. father’s, taking their manner of testifying on the stand. Defendants’ Counsel: Doesn’t the court believe there was a bailment of this team ? Court r You have asked me the question, and I will say that, from the manner of these parties on the stand, the court does not believe it. It may be so.”
“You have heard the old gentleman’s testimony, both on his direct and cross examination, as to what he did. He tells you that when he got near Court street corner, at Eortney’s Hotel, that he stopped a moment; that he looked and listened, and that he did not see any team in sight; and that he proceeded on an average gait, such as he was in the habit of using, to cross this street at the proper crossing at the time. . . . What would you have had him do, any more than he did do?”
This left the jury to infer that, in the opinion of the court, the plaintiff had done everything that the law required him to do, and that his statement as to what he did was a verity In the case, and must be accepted as true by the jury. This, we think, was invading the province of the jury, especially when considered in connection with the remarks of the court on the motion for a nonsuit, to which attention has already been called. Taken together, the jury would naturally infer that the court was of the opinion that the plaintiff was worthy ■of credit, and that his testimony would be accepted as true, but that the testimony of the defendants was unworthy of credit, and contrary to the presumptions arising from their own testimony. The defendants were entitled to a fair trial by an unprejudiced jury. We do not think they have had such a trial.
By the Court. — The judgment of the circuit court is reversed, and the cause is remanded for a new trial.