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

176 Wis. 209 | Wis. | 1922

Doerfler, J.

We have set out in the statement of facts the testimony in the case at some considerable detail, for the reason that the case presents almost exclusively a question of fact. Did the conductor, after the train passed Cor-liss, apply such force upon Surdican as to cause him to be thrown from the train, as the result of which he came to his death? The conflict in the evidence on material points involved is so great that we are led to’ the inevitable conclusion that either the statements of Russo are false or that the testimony of the defendant’s witnesses is false. They cannot both be the truth.

Ordinarily, apparently conflicting statements of witnesses may be properly reconciled, and wherever a possibility exists to reconcile such testimony it is the duty of the court to do so. The evidence in this case is beyond reconciliation. True, Surdican and Russo were not vagrants or vagabonds, but apparently hard-working and law-abiding members of the community, excepting only with respect to the matters and facts shown in the evidence in this case. Surdican was an employee of the defendant company, and, from the reading of his employee’s pass, was entitled to- passage upon train No. 1. However, there can be no controversy upon the fact that when Surdican was denied the right to travel upon this train it was his duty to abide by the orders of the trainmen, and to seek redress, if any he had, otherwise than by endeavoring unlawfully to become a blind passenger updn this train. It is unquestionably true that the action of the trainmen in refusing Surdican a passage on this train and in putting him off of the train resulted in great inconvenience to him. It is significant, to say the least, that the overwhelming testimony in the case sustains the evidence of the company’s trainmen that this train stopped first at Western avenue station, and second at Mayfair, and that both Surdican and Russo were put off the train at Western avenue, and that Surdican was taken from his position of peril at Mayfair and invited to, and that he did, occupy a seat in the coach until the train arrived at Corliss.

In determining where the truth lies in this case we must take into consideration the testimony as a whole, including that which pertains to what transpired at the time of the happening of the injury as well as that which referred to occurrences prior thereto. It is true that the conductor, when he claims he discovered someone standing outside of the vestibule door, may have had some feeling of resentment, in view of his previous experience with the deceased and Russo. However, these experiences, as is generally known, are not uncommon to trainmen on passenger trains. The conductor was an old and trusted employee of the company, having had seventeen years of experience as a passenger conductor, and having acted for five years as the conductor on the Pioneer Limited, one of the principal through trains on defendant’s road between Chicago and Minneapolis. It must be admitted that as to what occurred at and immediately prior to the death of Surdican the testimony of Russo is opposed solely by the testimony of the conductor. If the testimony of Russo be true, then the conductor was guilty of murder in the first degree in applying violence upon Surdican while he was standing upon the steps of the platform in a perilous position while the train was moving at the rate of between forty and fifty miles an hour. If he wilfully pushed Russo from the train, as was testified to by the latter, he was guilty of an assault with intent either to do great bodily harm or to commit murder. If Russo was violently thrust from the train while it was going at the rate aforesaid, it is almost inconceivable that he should not have shared a fate similar to that of Surdican.

The actual facts as detailed in the evidence, taken in connection with the surrounding facts and circumstances and the undisputed evidence as to the speed of the train, together with the overwhelming- impeachment of Russo’s testimony as to what transpired before the accident happened, are so persuasive as to force us to the inevitable conclusion that Russo’s testimony is incredible and against all reasonable probabilities.

In Lee v. C., St. P., M. & O. R. Co. 101 Wis. 352, 360, 77 N. W. 714, in an opinion of the court by Mr. Chief Justice Cassoday, it is said:

“The only portion of. the plaintiff’s testimony upon which the verdict could stand is not only made incredible by all the evidence in the case, but is intrinsically improbable. . . .

In such cases the trial court, which is vested with a very broad discretion — far more so than this court, — should promptly set aside the verdict. Badger v. Janesville Cot-ion Mills, 95 Wis. 599, 70 N. W. 687; Vorbrich v. Geuder & P. Mfg. Co. 96 Wis. 277, 71 N. W. 434; Maitland v. Gilbert P. Co. 97 Wis. 476, 491, 72 N. W. 1124. Of course, this court has frequently sustained verdicts supported only by a single witness, whose testimony was in conflict with a number of other witnesses, but a verdict must be supported by credible evidence as to facts not intrinsically improbable.”

In Peat v. C., M. & St. P. R. Co. 128 Wis. 86, 90, 107 N. W. 355, it is said by the court, Mr. Justice Dodge rendering the opinion:

“The meaning of the expression ‘against all reasonable probabilities,’ as rendéring testimony incredible, was further explained in Bourda v. Jones, 110 Wis. 52, 60, 85 N. W. 671, 674, as follows: ‘A sworn statement which is obviously false in the light of reason and common sense and facts within common knowledge is not to be received in court as true because some witness wilfully or ignorantly or recklessly so testifies.’ And again, in Beyer v. St. Paul P. & M. Ins. Co. 112 Wis. 138, 88 N. W. 57: ‘Testimony may be so in conflict with conceded and established physical facts as to be incredible for the reason that its truth is morally impossible or so improbable in the course of nature as to approximate impossibility.’ When, however, any fact,essential to a verdict is supported only by evidence thus rendered incredible, the setting aside such verdict is no longer discretionary with the trial court, but a duty, failure of which is error reviewable on appeal. Flaherty v. Harrison, 98 Wis. 559, 562, 74 N. W. 360; Cawley v. La Crosse C. R. Co. 101 Wis. 145, 150, 77 N. W. 179; O’Brien v. C., St. P., M. & O. R. Co. 102 Wis. 628, 78 N. W. 1084; Musbach v. Wis. C. Co. 108 Wis. 57, 68, 84 N. W. 36; Bourda v. Jones, 110 Wis. 52, 60, 85 N. W. 671, 674; Ellis v. C., M. & St. P. R. Co. 120 Wis. 645, 98 N. W. 942.”

We therefore hold that Russo’s testimony is incredible, contrary to all reasonable probabilities, and contrary to the physical facts. The judgment of the circuit court is therefore reversed, with directions to enter judgment in favor of the defendant dismissing plaintiff’s complaint, with costs.

By the Court. — Judgment reversed.

Rosenberry and Owen, JJ., dissent.