Farley v. Chicago, Milwaukee & St. Paul Railway Co.

89 Wis. 206 | Wis. | 1895

Cassoday, J.

The thirty-second finding of the jury, to the effect that the plaintiff was guilty of contributory negligence, is inconsistent, if not in direct conflict, with several other findings, to the effect that the direction and velocity of the wind at the time of the accident seriously interfered with the plaintiff’s hearing the approaching engine; that a man of ordinary intelligence and prudence, driving over the tracks on a trot, ought not to have reasonably expected that he would be unable to stop his horse in time to avoid a collision with an approaching engine; that under the circumstances ordinary care did not require a person of ordinary intelligence and prudence, so driving at the time, to stop his horse and listen for an approaching engine before-driving upon the tracks; that the plaintiff was told to drive-on, when his horse’s head was near the track on which the collision, occurred; that the plaintiff relied upon the judgment of the person so directing Mm; that tbe person so directing Mm to drive on ought not to have, as a man of ordinary intelligence and prudence, reasonably expected that a collision would occur if his direction should be obeyed; that the jury found for the plaintiff. There are still other inconsistencies in the verdict. Such inconsistencies in the findings of the jury were sufficient to justify the order setting aside the verdict and granting a new trial.

But another reason given in the order for granting a new trial is that the verdict was “ in part contrary to the clear preponderance of the evidence.” The granting of the order, for such a reason, restéd in the sound discretion of the trial court. McLinnans v. Lancaster, 57 Wis. 297; Seaman v. Burnham, 57 Wis. 568; Evans v. Rugee, 63 Wis. 31; Smith v. Champagne, 72 Wis. 480; Schraer v. Stefan, 80 Wis. 653; Schillinger v. Verona, 85 Wis. 595.

The nature and number of the questions submitted to the jury were well calculated to confuse and mislead them. As frequently suggested by tMs court, the questions submitted should be limited to the material and controverted questions of fact. Eberhardt v. Sanger, 51 Wis. 72; Heddles v. C. & N. W. R. Co. 74 Wis. 257; Montreal R. L. Co. v. Mihills, 80 Wis. 551. Such material facts as were not controverted should have been found by the court. Hart v. West Side R. Co. 86 Wis. 483.

Since the new trial was properly granted, it follows that the defendant’s motion for judgment was properly denied.

By the Court.— The order of the circuit court is affirmed.