126 Wis. 525 | Wis. | 1906
The complaint charges defendant with negligence in failing to provide and maintain its railway crossing at Ogden avenue, in the city of Superior, in a reasonably safe condition for public travel, and also negligence on the part of the engineer and fireman in causing the locomotive to be moved forward without keeping any lookout before starting and while approaching the place where plaintiff was injured. The jury found, in effect, that the defendant’s crossing at the place of injury was insufficient for public use, in consequence of which plaintiff’s foot became caught or fastened in a hole between the rail and a plank in the crossing; that defendant had notice of the insufficiency and was guilty of want of ordinary care in not discovering plaintiff and stopping its train in time to prevent the accident; that the insufficiency of the crossing and want of ordinary care on the part of defendant in not discovering plaintiff in time to prevent the accident were the proximate cause of plaintiff’s injury; that plaintiff was not guilty of any want of ordinary care which contributed to produce his injury, and that he sustained $2,500 damages. On defendant’s appeal numerous errors have been assigned, which will be considered in the order presented.
“The plaintiff produced as a witness G. S. Grant, who had been a juror upon the former trial of the cause, and who, at the time, as such juror, examined the sidewalk, and asked him to state the condition of the sidewalk just at the place where the board was nailed across from the railing to the saloon. The defendant objected, because the witness was one of the jurors at the time, and that the witness must confine himself to the condition of the sidewalk prior to the time of the injury. The objection to the witness was overruled, and he was permitted to answer the question asked upon the statement of plaintiff that he expected to show that the condition of the sidewalk when examined by the witness was the same as when the accident occurred. In this action there was no error. A party cannot be deprived of the benefit of the testimony of a party, simply because he had been a juror upon a former trial of the cause.”
It is further urged under this head that the testimony of the jurors- was inadmissible for the reason that they saw the premises some months after the accident. But it is a sufficient answer to this objection that there was evidence tending to show that the condition of the crossing at the point of injury was the same at the time of the view on the former trial as at the time of the injury. It follows, therefore, that no error was committed in the admission of testimony of the men who had served on the jury on the former trial.
Error is claimed because the court permitted, over defendant’s objection, the witness Johnson to testify to reasons for removing the block from the crossing at the place where
“Without further reference to tbe mass of evidence bearing upon tbe question, we must bold that tbe evidence is sufficient to sustain tbe finding of tbe jury above mentioned.”
It would serve no useful purpose to extend this opinion in recital of evidence. It is sufficient to say that there is ample evidence establishing tbe facts referred to in tbe opinion above quoted from, and upon well-settled principles tbe decision of this court upon tbe former appeal is binding here. Pautz v. Plankinton P. Co., ante, p. 37, 105 N. W. 482; Zimmer v. Fox River V. F. R. Co. 123 Wis. 643, 101 N. W. 1099. Moreover, independent of tbe decision on former appeal, we are convinced that there is sufficient evidence to establish a want of ordinary care on the part of tbe defendant in maintaining the crossing in question.
“If you find from tbe evidence that plaintiff’s foot became caught or fastened upon tbe crossing, and also find that in failing to extricate himself or otherwise avoid tbe injury be was guilty of a slight want of ordinary care, then you must answer question No. 6 Wes.’ ”
Tbe court refused to give this instruction, but instructed tbe jury, substantially, that if they found from tbe evidence that tbe plaintiff’s foot became caught or fastened upon tbe crossing, if they found it was caught, and that be could, by tbe exercise of ordinary care, have extricated it, or notified or caused others to notify defendant’s trainmen in time to have enabled them to prevent the injury, then they must answer this question “Yes;” and further, that “if plaintiff was guilty of a slight want of ordinary care wbicb contributed to produce bis injury, you must answer question No. 6 Wes.’ ”
Counsel for defendant further complains of the refusal to charge respecting question No. 7 as follows: “Plaintiff is not entitled to recover damages for permanent injuries as the result of the injuries in this accident.” We think no error was committed in refusing to give this instruction. There was sufficient evidence to go to the jury on the question of permanent injury. We deem further discussion of this assignment unnecessary.
Defendant assigns error on question No. 5 of the special verdict and the answer thereto. Question No. 5 is as follows :
“If your answer to the first question is ‘Yes,’ and your answer to the third question is ‘Yes,’ then were such insufficiency of the crossing and want of ordinary care on the part of the defendant in not discovering plaintiff in time to prevent the accident the proximate cause of plaintiff’s injury ?”
It is claimed under this instruction that the jury was permitted to find two several and independent acts of negligence to be one proximate cause of injury," and it is said that the failure to keep a lookout and insufficient crossing combined could not be the proximate cause of the injury. Defendant insisted upon the former appeal, as it does here, that the two combined acts of negligence on the part of defendant cannot be the proximate cause of an accident. This identical question was settled on former appeal (122 Wis. 258, 267, 99 N. W. 897) against the contention of defendant, and further discussion of it here is unnecessary. We have not specially treated all the numerous errors assigned by counsel for defendant, but only-such as we deemed worthy of particular consideration. We may say, however, in passing, that all points raised have received such consideration as their importance required. We think the case was fairly tried below, and find no error prejudicial to defendant.
On the first trial in the superior court verdict for the plaintiff resulted, and a new trial was granted on application of defendant, on the ground that the verdict was contrary to the evidence, but defendant was-not required to pay costs. On the second trial there was a verdict for plaintiff, and on appeal to this court the judgment was reversed and a new trial granted, on the ground of error in the trial court in the admission of testimony, plaintiff paying the costs of appeal in this court. After the second trial the costs of the first and, second trials were taxed in favor of plaintiff. After taxation ■of costs on the third trial at $381.33, on motion for review the court ordered retaxation and readjustment of the costs as taxed by disallowing the costs of the first and second trials, $256.06, and also eliminating from the cost bill three small items of costs of the third trial aggregating $1.96, and taxed the costs at $123.31. It follows from what has been said that the court eiTed in disallowing the costs of the first and second ■trials, taxed at $256.06.
By the Court. — The judgment of the court below in favor of plaintiff is modified by adding thereto $256.06, amount uf costs of the first and second trials, and, as so modified, is affirmed.