85 Wis. 609 | Wis. | 1893
1. There can be no doubt but what the rules of the defendant company, applicable to the service of the plaintiff and the operation of the engine in question, were properly admitted in evidence. Schultz v. C. & N. W. R. Co. 44 Wis. 638; Townley v. C., M. & St. P. R. Co. 53 Wis. 626; Lockwood v. C. & N. W. R. Co. 55 Wis. 50; Hoye v. C. & N. W. R. Co. 62 Wis. 668; Phillips v. C., M. & St. P. R. Co. 64 Wis. 475; Abbot v. McCadden, 81 Wis. 563; Beems v. C., R. I. & P. R. Co. 58 Iowa, 150, 10 Am. & Eng. R. Cas. 658.
2. Exception is taken because counsel for the plaintiff, in addressing the jury, said: “The defendant can bring experts from one end of the world to the other to defeat Mr. Dugan. They have money enough to do it.” This language escaped the attention of the trial' judge at the time, but a few moments afterwards was, by his direction, taken down by the reporter, and the defendant’s exception entered; and in the closing argument for the plaintiff, the next morning, such remark was expressly discountenanced. It appears that the remark referred to a physician from St. Paul who testified as a witness on the part of the defendant. We are not prepared to say, from the record, that this remark was prejudicial to the defendant. The occasion of it is not made to appear of record. “In arguing a case to the jury, counsel necessarily have a broad latitude. The administration of justice requires it. The trial judge is necessarily familiar with all the facts and cir
3. Error is assigned because the court refused to charge the jury to the effect that the burden was upon the plaintiff of showing due care and freedom from contributory negligence on his part. The jury found that the plaintiff’s injury was caused by the negligence of the defendant’s engineer in charge of the locomotive at the time, and consisted in moving his engine in violation of the rule. Such engineer being the plaintiff’s co-employee at the time, it is contended that there would have been no liability at common law, and hence that his right of action, if any, is purely statutory. The statute applicable reads: “ Every railroad corporation doing business in this state shall be liable for damages sustained by any employee, thereof within this state, without contributing negligence on his pjart, when such damage is caused by the negligence of any train dispatcher, telegraph operator, superintendent, yard master, conductor, or engineer, or of any other employee who has charge or control of any stationary signal, target point, block or switch.” Ch. 438, Laws of 1889; sec. 1816a, S. & B. Ann. Stats. The contention is that under this statute the plaintiff was bound to prove, as a condition precedent to recovery, that he was without contributory negligence on his part.
It is, in effect, conceded that independent of this statute the burden of proving contributory negligence, when not disclosed by the evidence on the part of the plaintiff, was purely a matter of defense. Hoye v. C. & N. W. R. Co.
4. It is claimed that the damages are excessive, and that
We find no error in the record.
By the Court.— The judgment of the circuit court is affirmed.