Hirte v. Eastern Wisconsin Railway & Light Co.

| Wis. | Feb 23, 1906

WiNsnow, J.

The appellant strenuously claims that this court should set aside the verdict because it is against the clear preponderance of the evidence. This court does not set aside verdicts for that reason. This court will only reverse the ruling of the trial court refusing to set aside a verdict where there is no evidence to support the verdict, or where, “though there be some evidence in its support, still the great weight of the evidence is against it, and that weight is so reinforced by all the reasonable probabilities and inferences that it becomes overwhelming.” Bannon v. Ins. Co. of N. A. 115 Wis. 250" court="Wis." date_filed="1902-09-23" href="https://app.midpage.ai/document/bannon-v-insurance-co-of-north-america-8187385?utm_source=webapp" opinion_id="8187385">115 Wis. 250, 91 N. W. 666. This is not such a case. While there was considerable evidence tending to show that the conductor did not recklessly push the plaintiff off from the car while in motion, there was much evidence tending to prove that such was the fact, and there are no physical facts which render the latter version of the occurrence incredible or against all the reasonable probabilities. Nor can it be said that the finding to the effect that the car was moving at the rate of three or four miles per hour is a mere conjecture, unsupported by any evidence. It is true that no witness testified to these exact figures, and that the only direct evidence on the point is by two or three witnesses that in their opinion the car was moving somewhere from five to ten miles per hour. This, however, was merely opinion evidence, and there was evidence in the ■case to the effect that the car moved twenty or twenty-five feet, or about a car length, after the plaintiff was put off, which evidence manifestly bore legitimately on the question of the rate of speed, and from which the jury might well conclude that the car was moving at a less rate of speed than that directly testified to by the witnesses.

The plaintiff attempted unsuccessfully, upon the trial, to show that notice was given to one of the defendant’s officers shortly after the injury of the act of the conductor, and in course of this attempt the following question was asked of the plaintiff’s father: “What did you say to Mr. Orover about this trouble?” Objection being made to this question the court said: “You are seeking to show that you informed the company of the improper conduct of the conductor soon after the accident happened?” To which question plaintiff’s counsel answered in the affirmative. Defendant’s counsel now contends that this characterization of' the conductor’s act as “improper” was calculated to impress the jury with the. idea that the court was of opinion that the conductor’s act was unjustifiable, and that hence it was prejudicial error. The remark of the court was certainly ill advised. Great care should be taken by trial courts not to make any remark in the presence of the jury which can be construed as indicating the -court’s opinion upon a question of fact. We cannot think, however, that the use of the word “improper” in the question, asked by the court could be reasonably construed by the jury as an indication of any conclusion of the trial court. The question was addressed only to plaintiffs counsel, who, of' course, was at all times vigorously contending that the conductor’s act was improper, and we think it was so patent that the court simply meant “the conduct which yon claim was improper” that the jury could not have been misled by it.

The court carefully charged the jury, in substance, that if' the plaintiff was using profane and insulting language or was guilty of boisterous or riotous conduct on the car, or was threatening to assault the conductor, then the conductor was-justified in putting him off without using unnecessary force, providing the car had come to a standstill, but not if it was-still in motion. Complaint is made because the court several times, in course of the charge, inserted this proviso, and reference is made to the Bolin Gaso, 108 Wis. 333, 84 N. W. 446, where it was held that there might be circumstances under which a railway company would not be obliged to wholly stop its train to require a wilful trespasser to leave it. The case manifestly has no application, and we are referred to no-case where it is held that a passenger lawfully riding on a, train or car, and not engaged in an assault, can be lawfully ejected while the train or car is in motion. The charge was-manifestly right.

Complaint is also made because the court refused to give-the following instruction, asked for by the defendant:

“A passenger on a street railway car is entitled to protection only so far as his own conduct merits it, and the defendant was not bound to protect him against the usual and probable results of bis own misbehavior, if, under all tbe evidence in tbe case, you find that tbe defendant was guilty of' any.”

This instruction is not well drawn and has little legitimate bearing on tbe evidence. So far as it states a correct principle it is fully and carefully covered by tbe general charge.' Tbe same remark applies to tbe remaining requests for instructions made by tbe defendant which were refused by the-court.

It is further claimed that tbe damages were excessive, and this claim is based largely upon tbe contention that tbe evidence was not sufficient to entitle tbe jury to find that tbe diseased condition of tbe plaintiff’s left leg was proximately caused by the ejection from tbe car. It appears that at some time after tbe occurrence a traumatic ulcer developed on tbe plaintiff’s left leg, which became serious and necessitated an operation upon tbe leg and tbe treatment thereof for ten weeks in a hospital, besides incapacitating him from labor of any kind up to tbe time of tbe trial, which occurred in March, 1905. Tbe testimony as to tbe exact time when this ulcer developed is in some confusion. There is, it is true, evidence tending to show that it did not develop until some three months after tbe ejection from tbe car, and some of tbe plaintiff’s own evidence seems to indicate that such was tbe case. However, be also says that there was pain at tbe place since tbe day of bis ejection, and tbe attending physician testifies directly that a few days after the occurrence tbe left leg became swollen from knee to ankle, that inflammation set in in a week or ten days after that, and increased until it broke out and became an ulcer, and that be continuously dressed and treated it until it became an open sore and an operation became necessary. As it was an undisputed fact that tbe ulcer was traumatic in its origin, and that tbe plaintiff was in bed from tbe time of tbe ejection from tbe car for a considerable-time, we think there was sufficient evidence upon which the jury might fold that the ulcer was caused by tbe fall at tbe time of tbe ejection. If such was tbe case, tbe damages cannot be beld excessive.

By the Gowrt. — -Judgment affirmed.

Maeshalx and EjerwiN, JJ., dissent.