Grasse v. Milwaukee, Lake Shore & Western Railroad

36 Wis. 582 | Wis. | 1875

Lyon, J.

The exceptions of the defendant are few in number, and will be considered in their order.

1. Did the court err in denying the motion for a nonsuit ? The legal duty of the defendant to maintain a farm crossing on the lands of the plaintiff Gottlieb in a condition to afford a reasonably safe crossing for the owner and his family, is not denied. (Laws of 1872, ch. 119, sec. 30). If the defendant agreed to, and did maintain two farm crossings on such land instead of one, the legal obligation as to each of them is the same. The questions litigated on the trial were : 1. Was the crossing in a reasonably safe condition when Mrs. Grasse was injured ? and, if not, 2. Did the plaintiffs use ordinary and reasonable care to avoid the injury? As a matter of course, these were the controlling questions in the case. The testimony relating to both of them is conflicting. We have examined it carefully, and we think it sufficient to sustain a verdict and judgment either for the plaintiffs or for the defendant. That is to say, under the testimony it cannot be held against the verdict, as matter of law, that the crossing was or was not in a reasonably safe condition, or that the plaintiffs were, or were not, guilty of negligence which contributed directly to produce the injury complained of. Because of the conflict in the testimony, these became questions of fact for the jury. The motion for a nonsuit called upon tbe court to determine them as matters of law, and hence it was properly denied. ■

2. The plaintiffs produced a witness who,„ on his direct examination, testified as to tbe condition of tbe crossing where the accident happened, and to nothing further. On his cross examination by counsel for the defendant, he testified that he, too, had a railroad farm crossing on his land, and that his crossing and that at which Mrs. Grasse was injured, were in the same condition. The same counsel then put the following question to the witness, to which objection was made on behalf of the plaintiffs, and sustained by the court: “ Did you carry your crops over' your crossing that year?” The ruling was correct on two grounds: 1. In his direct examination the witness had not said a word about his own crossing, and the question ruled out was not legitimate cross examination. 2. The question, if answered, might have raised a side issue for trial, viz., the condition of the crossing on the farm of the witness, which issue would have thrown no light whatever on the questions which .the jury were to determine. Hence the ruling was correct on the merits.

3. It seems that a portion of the witnesses — perhaps all of them —were Hermans, and testified in their own language (which was translated into English by an interpreter), and that some of the jury were also Germans. In his charge to the jurj*-the learned circuit judge said: “Many of you understand the language in which the testimony was given; the jury will have no difficulty in calling to mind what the testimony is in regard to it; and, having examined the location, you are better prepared to understand all the evidence, both on the part of the plaintiff and the defendant, than 1 am.” These remarks of the judge were excepted to on behalf of the plaintiff, and it is claimed that they are erroneous and fatal to the judgment.

There is no claim or pretense that the testimony of the witnesses was not correctly translated, or that all of the jurors did not understand it alike. The most that can be extracted from tbe language quoted is, that tbe jury would have no difficulty in calling to mind tbe testimony because many of them understood tbe language in which it was given, and that the jury, having viewed the crossing, were better able than the judge to understand the evidence. These were mere casual remarles, which, besides being perfectly harmless, were entirely true.

The remaining exceptions to the charge seem to rest upon the same grounds as the motion for the nonsuit, and need not, therefore, be further considered.

4. The counsel for the defendant asked the court to give several specific instructions, which the court refused to give. It is deemed unnecessary to set out these proposed instructions at length. It is sufficient to say that they have been carefully considered, and we are of the opinion that in so far as they contain correct legal propositions, they were substantially given to the jury in the charge of the court.

It is believed that the foregoing observations dispose of all the exceptions relied upon to reverse the judgment

As we find no error in the record, the judgment of the circuit court must be affirmed.

By the Court. — Judgment affirmed.