45 Wis. 182 | Wis. | 1878
It does not appear from the record upon what ground the nonsuit in this case was ordered. It is intimated in the brief of plaintiff’s counsel, that the court below granted the nonsuit because the evidence showed contributory negligence on the part of the plaintiff. The plaintiff rested after having detailed in his testimony the facts and circumstances under which he received the injury. The question is, Was the evidence of contributory negligence on his part so clear and decisive as to warrant the court in withdrawing the case from the jury? If the facts were fairly debatable, or rested in doubt, the nonsuit was improper. Langhoff v. The M. & P. du C. Railway Co., 19 Wis., 490. In considering the question whether the nonsuit was proper, this rule must be observed, that the court is bound to give the evidence the most favorable construction for the plaintiff which it will possibly bear, and all that the evidence in any degree tends to prove must be received as fully proved. Every fact that the. evidence, and all reasonable inferences from it, conduce to establish, must be taken as fully established. Imhoff v. Chicago & Mil. Railway Co., 22 Wis., 682. Bearing this rule in mind, let us briefly notice the evidence of the plaintiff, and see if it fairly warrants the inference of contributory negligence. The plaintiff says, in substance, that when he got off the train upon which he was riding, at First Avenue, on the side walk on the west side of the street, he looked around, and saw nothing coming, nor did he hear any alarm or signal given on the
The counsel for the defendant criticised very sharply the statements of the plaintiff, insisting that they were full of contradictions and absurdities and were unworthy of credit. It would be improper for us at this time to express any opinion as to the weight or credit w'hich should be attached to the plaintiff’s testimony. That is plainly a matter for the jury. We think his testimony is not so full of contradictions, inconsistencies and physical impossibilities, as to be self-destructive or unworthy of belief. This is all that we can say in regard to it.