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

64 Wis. 649 | Wis. | 1885

Lron, J.

In November preceding the shipment to Chicago, the plaintiffs deposited in a cellar at Lyndon about 575 bushels of potatoes. While there, more than 100 bushels of them were frozen. One of the plaintiffs so testifies. Out of this lot about 450 bushels were shipped on the two cars in question. Those thus shipped were taken from the portion of the piles and bins least frozen, but the testimony fails to show that any sufficient care was taken to assort the frozen from the sound potatoes. Both plaintiffs testified that they shipped none but sound potatoes. The jury disbelieved this testimony, and found, in effect, that one half of those found frozen in Chicago were in that condition when they were shipped from Lyndon. In view of the verdict it will be more charitable to construe the testimony of the plaintiffs, which is so positive in form, as the expression of an opinion, rather than the assertion of a fact. But, if so construed, still the jury have rejected their opinion.

It is therefore a verity in the case that the plaintiffs shipped from Lyndon a large quantity of frozen potatoes, intermingled with those not frozen. In round numbers, six per cent, of the shipment was found frozen at Chicago. The jury found that three per cent, thereof was frozen at Lyndon before shipment, and the remaining three per cent, at Milwaukee, or between that point and Chicago, by reason of the negligent breaking down of the bins by the defendant. It will be remembered that the shipment was made at the owner’s risk. The defendant was not an insurer, but is only liable for the damages caused by its negligence, and the only negligence alleged is the breaking of the bins.

The difficulty with the verdict is, there is no evidence to support it. Ve search the record in vain for any testimony tending to show that one half or any other considerable proportion of the mischief to the potatoes was done after the cars containing them reached Milwaukee. The verdict is the result of mere conjecture, which is no sufficient basis for a verdict in any case. Had the jury found that the plaintiffs shipped no frozen potatoes from Lyndon, we should have a very different question to deal with. The testimony is entirely consistent with the theory that all the misoMef to the potatoes was done before they were shipped. Excluding the testimony of the plaintiffs that the potatoes were all in good condition when shipped (and the verdict does exclude it), the testimony tends very strongly to show that the accident at Milwaukee could not have been the cause of the freezing. It certainly fails to show that it caused the freezing of twenty-six bushels, or any other considerable quantity, of the potatoes. For the reasons suggested there must be another trial.

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