67 Wis. 463 | Wis. | 1886
The complaint in this action first sets forth the incorporation of the defendant under ch. 45, P. & L.
For a second cause of action there are similar averments as to over five millions of feet of logs within said booms belonging to the plaintiffs in 1881, and damages of $11,000, besides profits, etc. In this count there is injected an allegation that, by reason of the insufficiency and want of repair of'said booms, and negligence and unskilful management of the same by the defendant, a part of said booms broke, thereby mixing .and intermingling about 1,000,000 feet of the plaintiffs’ logs with many million feet of logs in said booms belonging to owners of logs at Wausau, which caused an additional expenditure of $500 to remedy, and 600,000 feet were left in the booms.
The last count charges the obstruction of the navigation of the river by said booms in violation of sec. 1598, R. S., and the plaintiffs demand the penalty of $25 per day during such obstruction.
As to the last cause of action it is sufficient to say that the river at that point was not navigable in fact, except for the floating or driving of loose logs; and in respect to them the river must be obstructed in order to assort the logs of different owners, and this exception is made in the statute, and the legislature incorporated this company for that purpose, in order to facilitate the navigation of the river for that purpose, and the plaintiffs were as much benefited thereby as any one else. The penal statute has no application to such works at such a place, and it does not appear that the penalty was claimed on the trial.
The second question objected to on the trial was: “ How dong would it have required the boom, company to divide out that jam of logs at Wausau if they had plenty of help to do it and faeilities for so doing?” This was objected to as being immaterial and incompetent under the pleadings. This question was clearly incompetent as being an opinion without a single fact. What was “ plenty of help to do it ” ? What idea had the witness in his mind, that he did not disclose to the jury, as to how many men constituted 'plenty of help? The whole question is determined by the witness, by giving his opinion without giving any fact to base it upon, which could only be determined by tho jury, upon facts. The whole question is virtually taken away from the jury. And so as to the other member of the question, for it is twofold, “ if they had facilities for so doing.” What facilities ? Why, such facilities as the witness had in his mind. He is the sole judge of the necessary facilities. The jury are not allowed to pass upon the question at. all. The witness has in a single word settled the question, without testifying to a single fact involved in the question but not stated or asked for. It is a mere conclusion of facts without facts. ~ These brief and very comprehensive questions involve many questions and many facts. How many men had the defendant? Could any more men have worked to any advantage? Where could they have worked, and what could they have done? Could they have been obtained, and where, and at what cost? And so as to facilities. What facilities? Larger and stronger works, extending further down the river, or,higher up? Should there be new dams built, and new reservoirs made, and where? Was the whole plan defective, and should the works be reconstructed, and how? Some of these things the witness is presumed to have had in his mind, but what ones
The next question is equally objectionable for the same reason: “ You think that is a, fair amount for a boom company, situated as they were, to be able to divide in one day:” The witness might as well have been asked: Was the company negligent? Did they divide and pass the plaintiffs5 logs in as reasonable time as might be necessary ? The next question is liable to the same objection: “ Did they handle as much as they could have done if they had had plenty of storage room ? ”
These questions were repeated, with slight variation of language, over thirty times to various witnesses. Indeed, almost the only testimony relating to the negligence of the company was elicited by a short answer to such a question, and the jury was relieved from any inquiry into the facts. The conclusion of the witness was the verdict of the jury. It will be observed that most of these questions relate to the sufficiency and manner of the construction of the works of the company as the principal elements of its negligence and unreasonable delay. Some of the questions are a direct inquiry into the insufficiency and want of repair of the works, and the jury may be presumed to have predicated their verdict upon the negligence and delay occasioned by
The defendants were not called upon to defend the construction or sufficiency of their works under their charter. It was only their conduct in the operation and management of their works (conceded to have been constructed according to their charter) in handling the plaintiffs’ logs that were in issue “ under the pleadings.” It was only in view of the facilities they had for assorting, dividing, and passing the plaintiffs’ logs through their boom that they are charged with negligence and unreasonable delay, and not the facilities they ought to have had. And yet the questions are: “If they had had the facilities; ” “ If they had had storage room; ” “If they had had another dam,” etc.,' — and the evidence rested upon such conditions. These questions, then, were objectionable both in form and substance, and overruling the defendant’s objections to them was clearly error.
The evidence clearly showed that this was a most extraordinary run of logs and a jam, which could not have been taken care of as easily, or assorted and passed as rapidly, as when there was a less number of logs coming down together
In respect to the charge of the court to the jury, the exceptions are sufficient to call in question the general and very extended remarks of the court upon the navigability of the Wisconsin river for boats, barges, and rafts, and the subordinate right of the company to the public right of
It is unpleasant to reverse a judgment in a case involving so much expense of trial, and having such a large volume of testimony, and so elaborately tried and argued here by such able counsel, and yet the, errors considered are too glaring and important to be overlooked.
By the Court. — The judgment of the circuit court is reversed, and the cause remanded for a new trial.