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

78 Wis. 16 | Wis. | 1890

Tatloe, J.

Several grounds for the reversal of the judgment are insisted upon by the learned counsel for the appellant. Among others, it is insisted that the court erred in not removing the case from Washington county on the application of the defendant, and also in not granting a continuance of the case on the application of the defendant, on the ground that a material witness in its behalf was not present at the trial, and whose attendance could not, with due diligence, be obtained in time for the trial. As we have concluded that the judgment must be reversed for the error of the court in not continuing the cause on the application of the defendant, we do not feel called upon to discuss the questions raised by the learned counsel upon the subject of the assessment of damages in the case, further than to state tbat we think the learned circuit judge, in his instructions to the jury, properly instructed them as to what damages should be assessed in favor of the plaintiff in case they came to the conclusion that he was entitled to a verdict. He carefully instructed them that they should not assess any damages against the defendant for any injury or suffering which the plaintiff might have sustained or suffered by reason of his own neglect in not taking proper care of his injured limb after the accident occurred. We do not think the evidence in the case, admitting that it shows improper conduct on the part of the plaintiff in the care of his limb after the accident, makes such a case of contributory negligence after the accident as would bar his right to recover for all damages naturally resulting from the injury caused by reason of the carelessness of the defendant. It presents a case on the theory of carelessness on the part of the plaintiff after the injury which may have aggravated such injury, in which the jury under proper instructions could assess the damages which would be the natural result of the original injury separately from such damage as may have resulted from the subsequent carelessness of the plaintiff.

¥e think the application for a continuance should have been granted. The affidavit upon which the motion was made, it seems to us, shows reasonable diligence in trying to procure the attendance of the witness at the trial, and that his absence was owing to a fact which did not come to the knowledge of the officer having charge of the case, and whose business it was to see that the proper witnesses were in attendance, until it was too late to procure his attendance. That this witness was a material witness for the defendant cannot well be controverted. He was an experienced engineer and had recently, and for the purpose of preparing to testify in the case, made careful and accurate measurements and surveys of the place where the accident occurred, for the express purpose of laying before the jury the exact facts in regard to the stream, the railroad track, the bridge and the approaches thereto, when the accident occurred, so that the question as to the sufficiency of the track, the bridge and its approaches, and the openings through the same, might be shown to the jury, and the question of the sufficiency or insufficiency of the bridge and its openings might be fairly considered by the jury.

In examining the instructions of the learned circuit judge to the jury, it will be seen that the question of the negli-génce of the defendant, which was mainly relied upon by the plaintiff in making out his case, consisted in not having left sufficient openings in the bridge and its approaches to permit the ice and water to pass through in times of high water, especially in the early part of the year, when the ice in the stream was breaking up. It is true that it was also claimed that the defendant’s servants were negligent in running the train at the time of the accident at too great a speed under all the circumstances, but both grounds were relied upon, and we cannot say whether the jury based their verdict upon one or both of said charges of negligence, and, if they based it upon one, upon which it was based.

We do not forget that the trial court may, in its discretion, refuse to grant a continuance of the cause, even when the affidavit upon which the motion is based is in conformity to the rule (see Lavery v. Crooke., 52 Wis. 612, 614), whenever the court is satisfied that there is great doubt whether the alleged absent witness will testify as it is alleged he is expected to, or where there is reason to believe that due diligence was not in fact exercised in attempting to procure the attendance of such witness. But in this case it does not seem to us that even the learned circuit judge doubted the sufficiency of the affidavit in these respects or that it was made in good faith, as the record discloses that he gave as one of the reasons for not granting the motion that its effect would be to remove the trial of the case from Washington county. It seems to us that under the circumstances surrounding this case the fact that the case would be removed from the county of Washington, if the continuance had been granted, should have had no weight with the learned judge in determining the question upon the motion for a continuance.

While we are not prepared to say that the learned circuit judge erred in not removing this case to another county on the application of the defendant, on the ground of the prejudice of the judge and of the people of said county of Washington against the defendant, instead of calling upon another judge to try the case in said county under the provisions of ch. 435, Laws of 1887, we are constrained to say that we think the learned judge would have been fully justified in sending the case to some other county for trial, instead of calling upon another judge to try the same in Washington county. While we do not make it a ground for a reversal of the judgment in this case, we are also strongly impressed that, in consideration of the conflicting and unsatisfactory evidence as to the real nature of the injuries received by the plaintiff at the time of the accident, the damages awarded by the jury are quite large.

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