22 Wis. 681 | Wis. | 1868
Lead Opinion
The nonsuit in this case should not have been granted. There was clearly evidence to go to the jury upon the question of the defendant’s negligence — evidence tending to show that the train was backed, at the time the plaintiff was attempting to get off, without any notice either by the bell or whistle. The evidence of the plaintiff and her sister tended to show that she was in the act of getting off at the time' the train was backed. The evidence of the plaintiff’s sister, and of the policeman Paulus, which is very material on this point, as well as other testimony, tended to show that the train was backed without the bell being rung or whistle sounded. The only point upon which there seems
When the case was formerly here, there was no express allegation in the complaint that the cars were started without notice. It alleged generally that they were wrongfully and carelessly started, without having waited a reasonable time. The plaintiff’s cause of action was held by the court below, upon the first trial, to depend, as the pleadings then stood, on the continuance of the relation of carrier and passenger between the parties. Much of the evidence bearing upon the question whether the defendant waited a reasonable time before backing the train, and whether the plaintiff had a reasonable time to get off, relates to this aspect of the case. But the complaint was afterwards amended so as to allege that the cars were started “ without due notice.” And under this general allegation, evidence was introduced on the last trial, tending to show that there was no notice by the bell or whistle. If, as the case now stands, the cause of action depends on the continuance of the relation of carrier and passenger at the time of the injury, it would still have been a question for the jury, whether the plaintiff had a reasonable time to get off the cars. In determining it, they should have considered all the circumstances of the case, the character and condition of the plaintiff and the family with her, the fact that the train arrived in the night, that it was the terminus of the road, etc. But as the pleadings now stand, it is doubtful whether the cause of action depends on the continuance of that relation. Eor, even though she remained on the ears long enough to terminate that relation, this would not relieve the company from liability for an injury occasioned afterwards by its negligence, and without fault on her part. And the mere fact of so remaining would not necessarily constitute such fault or
Tbe counsel for tbe respondent contends that tbe amendment of tbe complaint should not be held to bave changed tbe case, because be says that amendment ought not to bave been allowed. But that is a question which this bill of exceptions does not present. Tbe case was tried upon that amended complaint, and we can only determine those questions presented by tbe bill of exceptions. And that presents no question as to whether tbe complaint ought to bave been amended. But, although tbe question is not presented, we may say that' it is our impression that tbe amendment was within tbe discretion of tbe court below to allow, and that it would not come within the ruling in Sweet v. Mitchell, 15 Wis., 641. Tbe cause of action is still for an injury to tbe plaintiff by tbe negligent starting of tbe cars of tbe defendant, and tbe amendment only seems to introduce a new act of negligence contributing to tbe injury.
Tbe counsel for tbe respondent relied very strongly on tbe testimony of Search, whose deposition was taken in behalf of the defendant, and was introduced by tbe plaintiff on tbe last trial. Undoubtedly, if full credit is given to bis statements, they go to disprove any negligence by tbe defendant. Perhaps, if tbe case bad been submitted to tbe jury, they might bave credited him in preference to tbe other testimony tending to show negligence. But they might also bave believed tbe other testimony, and discredited Mm. They are at liberty to find according to' their actual belief
By the Court. — The judgment is reversed, with costs, and . tbe cause remanded for a new trial.
Rehearing
On a motion for a rehearing, respondent’s counsel argued that tbe court bad overruled, by tbe above decision, that made on tbe former appeal, and which must be regarded as tbe law of tbe case; that both tbe cburt below and this court then held tbe suit to be against defendant as a common carrier ; that if tbe amendment of the complaint changed tbe action in that respect, it was a change from an action on contract to one for a tort, and tbe amendment was improperly allowed. Sweet v. Mitchell, 19 Wis., 524. They also argued: 1. That tbe jury, and of course tbe court, is bound, as a matter of law, so to construe evidence (if possible) as to make all parts agree, and avoid tbe imputation of perjury; and that positive evidence that a thing was done always overrides negative evidence that tbe witnesses did not see, or know, or bear, that sucb a thing was done. Moreover, a party who deliberately introduces testimony, knowing what it is, cannot say that bis witness was perjured and unworthy of belief as to bis testimony against such party. Tbe jury would therefore not have been at liberty to weigh tbe credibility of Search, who testified positively as to tbe ringing of tbe bell, against that of plaintiff’s other witnesses, who merely testified that they did not bear or did
A motion for a rehearing was made; and, as is quite usual, counsel think we have not only violated the former decision of this court in this case, but also the uniform decisions of other courts. "We have, however, carefully examined the argument without coming to that conclusion. The claim that we have overruled the former decision of this court, is based on the assumption that it was then decided that the plaintiff’s cause of action depended entirely on the existence of the relation of carrier and passenger at the time of the injury. But an examination of the case, reported in 20 Wis., 344, shows that no such proposition was decided. On the contrary, it appears that the circuit court having held that, on the pleadings, the cause of action depended on the existence of that relation, this
By the Court. — -The motion for a rehearing is overruled.