Gates v. Young

78 Wis. 98 | Wis. | 1890

Taylor, J.

Upon tbe bearing of tbe appeal in this court, tbe learned counsel for tbe appellant claims it was error to nonsuit tbe plaintiff, and insists that there was sufficient evidence to go to tbe jury upon tbe question as to tbe accuracy of tbe scale of tbe logs made by tbe inspector at La Crosse in 1886. After a careful consideration of tbe evidence, we think there was evidence which should have been submitted to tbe jury upon tbe question of tbe justice and fairness of tbe scale of logs made at tbe boom at La Crosse by tbe defendant Young in 1886. Tbe plaintiff certainly makes out a case for tbe jury upon tbe question whether be bad upon tbe banks of tbe east fork and on Hay creek, in the spring of 1880, 10,845,940 feet of logs on which the sterling mark was placed. It is true, Young states upon his examination by the plaintiff, that, notwithstanding he gave that amount as his scale and measurement of them in 1886, he -was, at the time of his examination, of the opinion that it was a mistake, and there was a less amount of them. Against this opinion of Young, the plaintiff has the testimony of Currier and of most of the men who put in the logs, who by their evidence tend to support Currier in the claim that there were more than 11,000,000 feet of them; and the scale bills of them given by the defendant Young to the plaintiff in 1886, are, by the statute, made prima, facie evidence of their correctness, except in favor of the inspector Young. See sec. 1735, E. S. 1878. It cannot be said, therefore, that there was not sufficient evidence to go to the jury upon the question of the quantity of the logs on the bank of the river in the spring of 1886, and that such quantity was at least 10,845,940 feet; and the only other material question in the case for the jury to pass upon was whether, in the year 1886, and before the spring of 1887, a much larger quantity than the defendant reported by his scale passed through the boom at La Crosse, which it was his duty to carefully scale and measure at that place.

Upon this question it must be admitted there is much less evidence than on the question as to the quantity which was put on the banks of the river during the preceding season. As insisted by the learned counsel for the defendant, there is no direct evidence that the logs on the banks of Hay creek and on the east fork were put in the river and floated down stream, nor is there any evidence of the stage of water that season,— whether it was a suitable season for floating and running logs in said streams and in the river,— which might aid a jury or court in determining the question as to the quantity which would be likely to come down that year. Still we think there was some evidence introduced upon which a jury might have concluded that more than 3,419,750 feet came down that year. There was the evidence of the defendant Young that ninety per cent, at least of the quantity of logs put in the river would arrive at their destination at La Crosse; and in addition to that the plaintiff put in evidence the scale bills made by the defendant Young that only 3,222,730 feet came down in 1887; that 785,310 feet came down in 1888; and that only 389,960 feet of these logs could be found at the places where these logs were banked or stranded in or in the vicinity of the river. Adding together the amounts coming down in 1887, 1888, and those found stranded, we get 4,498,400 feet of these logs accounted for after 1886.¹ Now, taking the estimate made by Yoimg that about ten per cent, would be lost by sinking or otherwise, there would be unaccounted for the difference between ninety per cent, of the 10,845,940, which is 9,761,346, and 4,498,400, equaling 5,262,946 feet. And it is claimed by the learned counsel for the appellant that the jury would be justified in finding that that 5,262,946 feet came down to La Crosse in 1886, instead of the 3,419,750, as reported and scaled by the defendant Youngj and that so great a difference in quantity is inconsistent with the exercise of reasonable care on the part of the inspector in discharging his duty. He also argues that, if it be insisted that the mistake in the measurement was as likely to be in the measurements of 1887 or 1888 as in the measurement of 1886, his reply is that he is at liberty to avail himself of the presumption of the statute that the measurements of 1887 and 1888 are correct until there is some evidence showing that there has been a mistake in them. Whether this argument should have weight with the court or jury we are not called upon to determine, as we think that having given considerable evidence tending to establish the fact that at least 10,845,940 feet of logs were placed upon or in the east fork of Black river and upon Hay creek in the logging season of 1886, and having also given evidence tending to show that all the logs so placed by the plaintiff previous to 1890 were floated into Black river, and down to the boom at La Crosse, and that they were there scaled by the defendant Young a second time, and that he then scaled them, including what were found stranded on the banks of the river, at only 7,816,750 feet, and there being no evidence tending to show that more than ten per cent, of the logs placed in the waters of the river, would be lost in running them to La Crosse, deducting this ten per cent, for losses in running said logs, there is still unaccounted for by the second scaling, 1,944,596 feet.

■ "We think the plaintiff was entitled, in the absence of any explanatory evidence on the part of the defendant, to have it submitted to the jury whether the defendant had not been guilty of negligence in making the second scale, and especially as to that part of the logs scaled in 1886; and, although there may not have been any more evidence tending to show a mistake in the scale of 1886 at La Crosse than in the scales made in 1887 and 1888, still the question whether there had been a mistake made in 1886 was for the jury; and although they may have found that there was a mistake in all the scales at La Crosse, and not in the 1886 scale alone, still, if they found a mistake in all the scales, they could have apportioned the damages which the plaintiff had suffered by reason of the mistake in the scale of 1886, if under the pleadings he must be limited,— as we think he must, — to the damages he sustained by a mistake in the scale of 1886, and in no other. The charge of injurious mistake is so particularly made in the. complaint that we think he must be confined to a mistake in the scale of 1886 alone, as, under the pleadings, the defendant is not called upon to defend the correctness of any of bis scales except that; and, if the plaintiff wishes to insist that other scales or all the scales made at La Crosse were incorrect and injurious to him, he should amend his complaint in that respect; and so if he wishes to insist that the defendant Young unlawfully reduced the scale of the logs put in by the plaintiff in the logging season of 1885-86.

We do not wish to be understood as intimating that in our opinion the testimony in the case tends strongly to establish any injurious mistake made by the defendant Young in scaling the logs at La Crosse. We simply hold that there was enough evidence tending to show such mistake to make it the duty of the trial judge to submit the question to the jury for their determination.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.