Jeffers v. Green Bay & Western Railway Co.

148 Wis. 315 | Wis. | 1912

Marshall, J.

Is it clear the trial court erred ? It would not avail appellant for it to merely appear here, looking at the printed record alone, that the decision below is wrong. Balancing the mere record probabilities in the affirmative against those in the negative and adding to the latter the superior opportunities afforded the trial court, which could not be presented here, do the former outweigh the latter, — not merely appreciably, but so decidedly as to produce conviction that there can be only slight, if any fair, doubt about it ?

It is recognized that in such circumstances as the trial judge faced, he is bound, in the performance of duty, to take the case from the jury if convinced there is no fair ground in the evidence for a determination in favor of the plaintiff. Efficient administration requires such duty to be met with courage, consideration, and firmness. To the end that such efficiency may be promoted as well as from the very nature of the matter, initial decisions, as in this case, should not be disturbed except for very substantial reasons. Recognizing that, it is the settled policy of this court, one so long adhered to as to have all the force of unwritten law, that the result below will not be disturbed unless not only wrong, but manifestly so.

In determining whether the decision in question will stand the test indicated, we must view it in two aspects: (a) Is it right, looking only at the ground on which it was made? (b) If it be not right on such ground, is it manifestly right on some other ? The real right of the matter is the ultimate end to discover and effectuate, rather than the legitimacy of' the logic upon which the result complained of was grounded.

It will be noted by tbe statement, tbat .the circuit judge assumed, because witnesses testified, positively, to having seen Jeffers mount tbe sixth car and no one contradicted them, tbat such must be tbe fact. So tbat was set down as a verity. Tbe testimony of tbe person, who gave. evidence to having seen Jeffers mount the fifth.car from the east side, corroborated by tbe certainty tbat be was thereon at the fatal moment, and tbe fact tbat such person was not disputed by tbe word of any other witness, was taken as true, beyond reasonable ground for dispute. So tbat was set down as a second verity. From such premises tbe trial court reasoned to tbe third verity, as was thought, tbat after going up tbe ladder to tbe top of tbe sixth car, tbe decedent traveled thereon to tbe northeast corner thereof, then down tbe ladder at that point to tbe street, such point being nearly as far north as be was before, then tbat be grasped tbe ladder at tbe northeast corner of tbe fifth car as it came to him, ascended to tbe top of such car and proceeded back to reach tbe sixth, and met bis. death in doing so.

In reasoning as indicated, it seems tbe fact was lost sight of or not given due consideration, tbat truth is not, necessarily, according to tbe evidence of one or more witnesses,, however fair they may appear to ’testify, and notwithstanding absence of any direct conflict from tbe mouth of any other-witness. One physical situation demonstrated to have existed, or one circumstance, established beyond any reasonable ground for doubt, may outweigh tbe most positive uncontra-dicted evidence of one or any number of witnesses.

Here we have physical situations and circumstances of tím nature indicated, as follows: Tbe man was on tbe fifth car going to tbe place to which be was assigned when tbe catastrophe occurred. No rational person could be reasonably expected to make such movements in tbe whole, as tbe trial court suggested. Tbe time between tbe claimed ascent to tbe top of tbe sixth car and tbe certain ascent from tbe street to tbe top of the fifth, was, under the circumstances, as a jury might reasonably conclude, so inadequate as to produce conviction that two ascents did not occur. Such time was, manifestly, too short, especially if the testimony of Boex, one of the witnesses relied on to sustain the result reached, that he saw Jef-fers standing on the sixth car, is believable. “I claim,” said the witness, “he was standing on the car doing nothing. He was not walking either way. Gallagher was running at that time alongside the south end of the fifth car.” According to this, Jeffers was standing still on the sixth car at a time when, as there is evidence tending to show, it had cleared the street, or nearly so, the engineer had received the kick signal and speeded up the train, and the foreman was making ready to pull the pin, and yet Jeffers covered the length of the car, descended therefrom to the street, about as far north as the point of ascent, waited for the train to move the length of a car, bringing the northeast corner of the fifth one to him, then ascended to the top thereof and doubled back to near the south end by the time it reached a point about eighty feet south of the street where the fatality occurred, — all such movements being equivalent to traveling a greater distance than the foreman covered, who was on a run most of the time as there is evidence tending to prove. We cannot escape the conclusion that a jury, facing the situation pictured, might reasonably reject the whole theory upon which the decision was grounded as utterly improbable, — come to the conclusion that the ascent to the top of the sixth car as testified to by the foreman, the engineer, and Boex, did not occur.

Counsel for respondent present the contrary of the foregoing in its most favorable light, but, at the best possible for that side, only the major probabilities are in favor of the trial court’s theory. The case is to be viewed in the most favorable aspect on the evidence for plaintiff. But, whatever viewpoint be selected for taking a survey of the situation, it seems clear beyond room for fair controversy, that the jury might reasonably have come to tbe conclusion that Jeffers did not mount tbe sixth car at all but was on his way there for the first time at the fatal moment. The trial court, erroneously, as it seems, thought the testimony of the three witnesses to the contrary was wholly unimpeached and hence that all the other evidence was required to be harmonized therewith, if possible, and otherwise rejected. That was wrong; very clearly so, as we have seen.

It follows that the decision complained of cannot be supported on the ground on which it was made.

In examining the case further to determine whether the verdict be right, though grounded on untenable reasoning, we must assume, because a jury might have so concluded on the evidence, that at the moment the witnesses claimed to have seen Jeffers mount the sixth car, he, instead, crossed the track just before the car reached him and, a moment later, mounted the fifth car as the northeast corner came to him, and proceeded by way of the top thereof towards his destination on the sixth car, either supposing that the latter was to be spotted on the weighing scales or expecting that some efficient notice would he taken of his whereabouts before giving the stop signal to the engineer. There must he some explanation of his movements which occurred just before the fatal event, consistent with his not expecting, or from his viewpoint being bound to expect, that the movement of the cars which took place was about to happen. Otherwise, in view of the fact that he was an experienced railroad man, the conclusion would he inevitable that he was irrational or bent on committing suicide. Counsel for respondent seem to concede that, and to seek to escape from the dilemma by claiming that decedent’s duty was to mount the sixth car and stay there till he set the brake, and that, had he done so instead of stepping aside, for some unexplained, and unexplainable, reason, and mounting the fifth car from the.street on the east side, either originally or after having descended from the sixth car, he would not have encountered tbe danger, and so defendant is not liable; since those in control of tbe car bad no reasonable ground to suppose be would take any sucb course, or be elsewhere than on tbe sixth car when tbe stop signal was given.

Tbe stated argument of counsel is in harmony with part of tbe trial court’s logic, tbe bey to which is that Jeffers in fact mounted tbe sixth car. That, tbe jury might reasonably have rejected, as we have seen.

We are unable to find any satisfactory basis in tbe record for counsel’s theory that, if tbe decedent endeavored to reach bis destination on tbe sixth car by going thereto by way of tbe fifth, mounting it from tbe east side, be disobeyed orders or was guilty, necessarily, of want of ordinary care; especially if be supposed bis position would be observed or some warning would be afforded him before tbe stop signal was given to tbe engineer, moreover, if be supposed, and bad reasonable ground therefor, that be was participating in a spotting movement. Tbe order was not to mount tbe particular car and ride it in on tbe “scale track” and set tbe brake. True, be had to reach tbe top of tbe car in order to ride it and be in position to set tbe brake; but as suggested, we are unable to discover any certain evidence that it was contrary to orders or, necessarily, negligent for him to endeavor to reach bis post by way of tbe fifth car.

We appreciate that for one circumstanced as Jeffers was to cross tbe track before tbe coming car and ascend from that side to tbe top of tbe fifth car and proceed thereon to bis destination, seems somewhat strange; but sucb movements, as we have seen, would be far more reasonable than those supposed and upon which tbe verdict was grounded. Now is it not reasonable to conclude, that it was tbe duty of the foreman, before dropping the sixth car, to have bad some satisfactory evidence that Jeffers bad mounted it? That aspect of tbe matter seems to have been appreciated and, as was supposed, indisputable proof on the question made. If he was not seen to mount tbe ear, he must have so suddenly disappeared around the end of it, that the foreman had little, if any, ground to believe he had reached the top. In those circumstances we are not prepared to hold that the jury could not reasonably have decided, had the matter been left to them, that it was the foreman’s duty to have made some effort to acquaint himself with the decedent’s location before giving the stop signal. In such circumstances the case might well have been sent to the jury regardless of whether the design was to execute a spotting or a kicking movement.

So it seems the jury would have had ample ground to conclude that Jeffers supposed the car was to be spotted on the weighing scales. In that event his movements from his viewpoint, were not attended with any danger.- Did he have reasonable ground for so supposing? If so, was his condition of mind attributable to fault of the foreman or others who should have instructed him ?

It seems quite significant that there is ample evidence to sustain the theory that the particular track was known as the “scale,” not th'e “scales.” True, the evidence is perhaps not conclusive on this but is enough so to lead to the conclusion that the jury might -properly have so found. The road superintendent testified, very positively, one’way and the foreman the other. That being so, Jeffers, who was not familiar with the particular yard, or, so far as the evidence shows, with any where there was a track called the “scales” or “scale,” may have thought the car was to be placed on the weighing scale •and been misled in that regard by the foreman’s use of the word “scales,” — the characterization, in common parlance, of weighing scales, instead of “scale,” which might, perhaps, be fairly understood, without reference to the local custom, to mean the scale track. That Jeffers was in some way misled seems pretty certain. In any event the jury had fair room for such conclusion. He would not have taken the course which he did, as the jury might well have concluded, except in the belief that the car -was to be spotted. Now if the man was misled and so came to his death, whose fault was it \ It seems there is ample ground for saying the mischief was caused by the foreman negligently using the term “scales” instead of “scale,” especially under the circumstances of decedent’s well known unfamiliarity with the yard and the particular local custom.

So in view of the suggested known want of experience of the deceased, and of the fact, so far as appears, that there was no rule or custom by which one circumstanced as the de- , cedent was could determine a spotting from a kicking order with certainty, and the use of terms in giving orders quite likely to mislead as to the nature of the contemplated movement, and in view of the further fact that the particular ways of the yard were not explained to the deceased, we are constrained to hold that the jury might reasonably have come to the conclusion that Jeffers was misled by the negligence of the foreman; that there was further negligence in not taking some observation as-to whether he was on the sixth car before giving the stop signal; also that his working place was not reasonably safe under the circumstances; and that such negligences, or some of them, were the proximate cause of the fatality or proximately contributed thereto. So the case is within the field of jury duty and the trial court clearly erred in deciding otherwise.

By the Court. — The judgment is reversed, and cause remanded for a new trial.