Hardy v. Milwaukee Street Railway Co., 89 Wis. 183

Hardy v. Milwaukee Street Railway Co.

89 Wis. 183 | Wis. | 1895

*WiNslow, J.

We were strongly urged to hold that the verdict is clearly against the preponderance of the evidence, *185as was held in McCoy v. Milwaukee St. R. Co. 82 Wis. 215. It is true that the plaintiff’s testimony to the effect that the car had stopped when she started to alight, and that she was thrown down by the negligent starting thereof, stands substantially alone, and that it is contradicted by several witnesses, who testified that she attempted to alight before the car had fully stopped; but there are no circumstances in the case which make her story intrinsically improbable or incredible, as there were in the McCoy Case, and we cannot say, after reviewing the evidence, that the refusal to set aside the verdict, as against the preponderance of the evidence, was error.

The trial judge charged the jury that “ the weight of evidence does not depend upon the number of witnesses to a given fact, but it depends upon the amount of credit that you will give to the testimony of one or all. of the witnesses, in the case; ” and this is alleged as error, because it is said that the effect of it is to tell the jury that the number of witnesses cuts no figure on the question of preponderance of evidence. If this instruction stood alone, it might be subject to criticism, as a similar instruction was in the McCoy Case; but the trial judge, in the present case, also charged the jury in the same connection, substantially,, that the manner of the witnesses on the stand, their apparent interest in the case, their means and opportunities of observing the facts to which they testified, and the probability of their statements, were all to be considered in determining whether they testified correctly or not; and in another part of the charge he gave another instruction on the same subject: “ In considering the question of the alleged negligence of the defendant, you are to take into consideration all of the-evidence; the number, character, and appearance of the witnesses ; the interest, if any, which any of them may have in the event of the suit; the manner of their giving their testimony; their apparent fairness and candor; and the prob*186ability, in connection, with, all of the evidence and the circumstances surrounding the matters testified to, of the truth of the matters testified to by the several witnesses: This is not only applicable to the witnesses for the defendant, but is applicable to all the witnesses that have testified in this case. You are to judge of the amount of credibility that is to be •given to the testimony, as given here under oath, by their •appearance and by the interest that they may appear to have, and by the motives that they may seem to be influenced by. You are not at liberty to reject the testimony of any witness, except for a good and substantial reason which convinces your mind that his or her testimony has been substantially untrue or improbable or unreliable.” Ye think, in view of these quite full and correct remarks on the general tests of credibility, the jury could not have been in any way misled by the general statements first above quoted.

One Whitehall was called as a witness for the defense. He was standing on the adjacent Street corner at the time of the accident, and testified that he saw the car coming down ■the street, and that he thought it was coming too fast; that it slowed up, and that the plaintiff got .off the car while it was still moving slowly; and that she appeared to sink to the ground. On cross-examination he was asked whether he had not said to Mr. Hamilton, one of the plaintiff’s attorneys, at a certain time and place, that he considered it the most careless piece of business he ever saw. He answered this question, against objection and exception, that he did, and then explained that he meant the- speed of the •car as it came down the street. On this subject the defendant requested the following instructions to be given to the jury: “Under the evidence in this action, the question of •the speed of the car as it approached Yan Burén street, and before the accident happened, has no bearing upon the question of the negligence of the defendant or of the plaintiff.” ££The speed of the car as it approached Yan Burén street *187■should not be considered by you upon the question of negligence of the defendant. It is not shown by any of the evidence that the speed of the car was in any way the cause •of the accident.” Both of these instructions were refused, ■■and exceptions taken. We do not think the admission of Whitehill’s statement to Hamilton was error. He had, upon 'the witness stand, stated facts tending to exculpate the defendant from negligence and carelessness at the time of the accident; and it was proper to ask him, on cross-examination, if he had not made a statement apparently in contradiction with his testimony given on the stand, not as substantive proof of negligence, but as bearing upon his credibility as a witness. Certainly, however, when this proof had been admitted, the defendant was entitled to the instructions which it asked, to the effect that the speed of the car had no bearing on the question of the defendant’s negligence. The ordinary jury does not reason with logical exactness, and it might reasonably be thought by the jury that, if the defendant’s servants were negligent in’ operating the car just before the accident, they were probably negligent also at the time of the accdent. 'To avoid any such inference, the instructions asked for, or their equivalent, were proper, and should have been given.

Criticism is made on that part of the charge relating to damages for permanent disability. The charge allows the jury to assess damages for the pain and suffering which the plaintiff “ may endure hereafter,” and for the loss of such time “ as the evidence convinces you she will be likely to suffer hereafter.” The rule is that the alleged permanent disability, in order to be a ground for damages, must be one that is reasonably certain to result from the injury complained of. White v. Milwaukee C. R. Co. 61 Wis. 536. We think the charge was too broad in its terms, and allowed the jury to go into a field of mere probability, instead of being confined to the field of reasonable certainty.

By the Court.— Judgment reversed, and cause remanded for a new trial.