128 Wis. 403 | Wis. | 1906
Tbe negligence alleged by plaintiff, and upon which she relies to bold defendant liable, is that, after defendant’s servants bad announced tbe arrival of its train at Delavan and after it bad come to a standstill, she “arose from her seat in said car and proceeded toward tbe forward . . . end thereof for tbe purpose of alighting therefrom, but before [she] bad bad a reasonable or sufficient time, in tbe exercise of ordinary care, to get off of said train and while she was proceeding to get off, using due care and caution, . . . said defendant, by its servants, agents, and employees so in charge of said train, suddenly, negligently, and carelessly, and without any warning or notice to this plaintiff, caused said train to be suddenly, rapidly, and violently started and jerked, whereby this plaintiff was thrown with great force and violence upon the floor of said car and sustained tbe injuries” as alleged. As above stated tbe evidence of tbe witnesses produced by tbe plaintiff is to tbe effect that, while plaintiff was standing near tbe car door ready to alight, tbe train stopped, and before she bad left tbe car it suddenly and violently started forward with a jerk, causing her to fall to tbe floor. Tbe witnesses produced by tbe defendant, some
The question arises: Is the plaintiff, under the complaint, entitled to judgment upon the verdict? It is clear from the allegations of negligence that liability is predicated upon the negligent management of the train in suddenly and violently starting it up while plaintiff Avas in the course of alighting from it. The specific allegation of fact that the train had come to a standstill before she arose from her seat is not an indispensable element to the alleged cause of action, which charges defendant with negligence in suddenly, rapidly, and violently starting and jerking the train. So far as defendant’s negligence is involved under the allegation of the complaint it is immaterial whether this negligent management
It is contended that the defendant-had a right to assume that plaintiff relied upon this specific allegation of fact and, therefore, its testimony was restricted to showing that the -train did not come to a stop and then suddenly start forward as claimed. The cause of action.-.alleged is broad enough to include negligence by a sudden starting up and jerking of the train either immediately before or after stopping, and the complaint gave defendant information of the scope of this claim of negligence, and, as shown above, included the negligence found by the jury. An examination of the record also discloses that defendant produced a very large number of witnesses who testified in full as to the slacking of the speed of the train as it approached the depot, with detailed particularity as to any sudden, rapid, and violent starting and jerking of the train in making the stop for this station, and the management of the train in bringing it to a full stop for passengers to alight. It is difficult to perceive how the proof could have been fuller in all its details and broader in scope to meet the allegation of negligence in the complaint as we view it. We find no justification for the claim that defendant did not fully litigate the issue thus made by the pleading. To permit plaintiff to recover upon the case found by the jury is not in contradiction of the alleged cause of action as established under all the evidence. True, the finding is contrary to. a part of the evidence of plaintiff and of the witnesses called by her, yet this does not preclude a recovery if the verdict is
“Tbe law recognizes tbe fact that parties, as well as other witnesses, may honestly mistake tbe truth, and requires juries to find tbe facts by weighing all tbe testimony, whatever may be tbe source.”
Applying a rule of liberal construction to this pleading, with a view to substantial justice^between tbe parties, we find no justification for tbe claim that there is a variance between tbe alleged cause of action and tbe proof. Tbe following cases are in point: Hill v. West End St. R. Co., supra; Scarry v. Metropolitan St. R. Co. 81 N. Y. Supp. 284; Strahlendorf v. Rosenthal, 30 Wis. 614; Matthews v. Baraboo, 39 Wis. 674; Leslie v. Wabash, St. L. & P. R. Co. 88 Mo. 50; Cincinnati, H. & I. R. Co. v. Revalee, 17 Ind. App. 657, 46 N. E. 352; Hicks v. Galveston, H. & S. A. R. Co. 96 Tex. 355, 72 S. W. 835.
Tbe determination of tbis question renders consideration of tbe other questions argued and submitted unnecessary. It may, however, be observed that, if it were necessary to amend tbe complaint to conform to tbe proof, it should have been permitted as requested, for it is very clear that, since all material questions were fully tried by tbe parties, defendant was not misled by tbe allegation of tbe complaint. Cody v. Bemis, 40 Wis. 666; Aschermann v. Philip Best B. Co. 45 Wis. 262; Russell v. Loomis, 43 Wis. 545; McKinney v. Jones, 55 Wis. 39, 11 N. W. 606, 12 N. W. 381; Rosenberg v. Third Ave. R. Co. 61 N. Y. Supp. 1052; Foley v. Riverside S. & C. Co. 85 Mich. 7, 48 N. W. 154.
Erom these considerations it follows that defendant’s motion to strike out tbe answers to questions 6 and 7 of tbe special verdict should have been denied, and that plaintiff’s mo
By the Court.- — Judgment reversed, and tbe cause remanded witb directions to enter judgment for plaintiff in accordance with tbis opinion upon tbe special verdict as rendered by tbe jury, and for further proceedings according to law.