128 Wis. 385 | Wis. | 1906
The appellant attacks the validity of the •ordinance limiting the speed of automobiles in the city of Watertown, on the ground that it is uncertain and unreasonable; uncertain, because no provision is made for establishing or marking in any way the limits of the district so that the driver will know when he reaches the half-mile radius, and because there is nothing to show whether the word “crossings” means highway crossings or railroad crossings ; and unreasonable, because the limit of speed is an unreasonably low rate. In our judgment these objections are mot well founded, and we shall devote little time to them. It has generally been deemed wise for cities to limit by ordinance the rate of speed by vehicles upon its streets, in the interest of public safety. We do not deem it necessary for the municipality to erect signs at the city limits or elsewhere to inform the traveler at what point the-area of limited speed begins, nor do we think that the word “crossings” can be reasonably considered uncertain in its meaning. The ordinance is an ordinance to regulate the use of automobiles upon the “streets” of the city, and the word “crossings” plainly refers to street crossings, where the danger resulting from high speed
There are, however, two very palpable errors in the instructions given to the jury which must result in reversal of this case. After charging the jury that the burden of proof was on the plaintiff to convince them by a preponderance of the testimony of the material facts necessary to establish his right of recovery, and that preponderance of the testimony means that testimony which weighs heaviest in their minds, the trial judge proceeded further to say:
“If, after a consideration of all the testimony, you are inclined to the opinion that under these instructions of the court the plaintiff is entitled to recover, then the testimony preponderates in his favor, and he has established his claim by a preponderance of the testimony.”
It is very evident that by this sentence the whole matter of burden of proof and preponderance of evidence is plunged into inextricable confusion. The jury are here told in effect that preponderance of evidence and burden of proof mean the same thing; and not only this, but that if they are inclined to the opinion that the plaintiff is entitled to recover, then the plaintiff has not only produced the preponderance of evidence, but also has discharged his duty as to the burden of proof. The error is plain and must have been prejudicial. Preponderance of evidence and burden of proof are not the same thing, "although they run into each other. By preponderance of evidence is meant the evidence which possesses greater weight or convincing power; by burden of proof is meant the duty resting on the party having the affirmative of the issue to satisfy or convince the minds of the jury, by the preponderance of the evidence, of the truth of his contention., It is not enough that his evidence is of slightly greater weight or convincing power; it must go further, and satisfy or convince the minds of the jury, before the burden of proof is
The trial judge charged the jury as to proximate cause as ■follows:
“The proximate cause is the efficient cause from which the injury follows in unbroken sequence without any intervening cause to break the continuity.”
The correct definition of proximate cause has been so frequently given by this court in recent years that an inaccurate definition now seems hardly excusable. Deisenrieter v. Kraus-Merkel M. Co. 97 Wis. 279, 286, 72 N. W. 735; Feldschneider v. Chicago, M. & St. P. R. Co. 122 Wis. 423, 99 N. W. 1034. The definition given by the trial judge was incorrect, and has been frequently condemned by this court.
The trial judge charged the jury in one part of his charge •as follows: “The speed of the automobile alone cannot be made the foundation of an action for damages.” A few sentences later he charged as follows? “If you should find that it was any other reason than his [defendant’s] excessive speed which caused the horse to shy and the injury to happen,then the plaintiff cannot recover.” What basis there was left upon which a verdict for the plaintiff could be given, after these two instructions had been given, it has been impossible for us to see. The jury had been told that- there could be no recovery based on speed alone, and then were told that there ■could be no recovery for any other reason, than speed. While this confusion of ideas was prejudicial to the plaintiff rather than to the defendant, it is deemed proper to notice it here because it emphasizes very sharply the danger of attempting to charge a jury orally. It was stated on the argument that the charge in this case was an oral charge, and its looseness and contradictory character bear' very convincing evidence that such was the fact. The office of the charge is to state -clearly and concisely to the jury the issues of fact, and the principles of law which are necessary to enable them to rightly
It was argued in the present case that the evidence showed that the fright of the horse was caused by the noise of the automobile or the sound of the horn, and not by the excessive speed, if there was excessive speed, and that hence the speed could not be found to be the proximate cause of the injury. We do not find it necessary to pass upon this question now. Of course, the plaintiff must show, in order to recover, that the excessive speed was the proximate cause of his injury; i. e. that the fright of the horse was caused by the excessive speed as a natural and probable result, which result or some injuidous result should have been anticipated by the defendant under the circumstances. If the horse was frightened by the ordinary noise made by the automobile which was not greater or different than the noise made when propelled at
By the Gourt. — Judgment reversed, and action remanded for a new trial.
