166 Wis. 266 | Wis. | 1917
If findings 1, 2, 3, 7, and 9 are sustained by the evidence, then judgment for plaintiff was properly entered, and errors assigned with reference to the submission of, or instructions relative to, findings 4, 5, 6, and. 8 become immaterial, unless such errors, if any, were of such character
Claim is made that since five or six of defendant’s witnesses, including the engineer and fireman on the train, testified that the automatic engine bell was rung all the time from Allis station, about 1,0Q0 feet north of the place of injury, to where plaintiff was struck, the testimony of plaintiff and of four other members of the crew, including the foreman, whose duty it was to watch for trains and give signals to his crew, and who was so engaged, to the effect that no bell was rung, is not sufficient to support the first finding because merely negative in character, and that the court erred in not instructing the jury as to the relative value of negative and positive testimony as requested. Plaintiff and his witnesses who testified on this subject said they were listening for trains and train signals but heard none. They were-in a position where they could have heard signals given by a bell or whistle. This statement is made with full appreciation of the fact that the evidence showed a concrete mixer was in operation about twenty-five or thirty feet from the pile of frogs and that there were other noises in' the vicinity. The sound of an engine bell is quite effective in reaching the seat of hearing, especially when only a short distance away. So we have a situation where the witnesses were listening for a signal and were in a position to hear one if given. Under such circumstances their testimony that none was given cannot be said to be negative. In Coel v. Green Bay T. Co. 147 Wis. 229, 234, 133 N. W. 23, the rule applicable was thus stated:
“Where the existence or nonexistence of a physical fact ascertainable by the senses is called to the attention- of a witness at the time and place it is claimed to exist or not exist, and the witness is in a position to ascertain its nonexistence*270 as readily as its existence, and lie makes an observation to ascertain what the fact is, his testimony that it did not exist is not negative in the sense that it can he said as a matter of law that positive testimony outweighs it.”
To the same effect is the holding in Kaufmann v. C., M. & St. P. R. Co. 164 Wis. 359, 159 N. W. 552, 1067. These cases rule the question here presented in favor of the refusal to instruct as requested. The sharp conflict in the evidence upon the subject of warning made it peculiarly a jury issue. The judge of the civil court and the circuit judge approved the finding. We cannot say they were clearly wrong in so doing.
The next claim is that plaintiff was guilty of contributory negligence as a matter of law and the jury’s finding to the contrary should be set aside. The rule with reference to the degree of care that plaintiff should exercise, circumstanced as he was, is so fully and clearly stated in Dinan v. Chicago & M. E. R. Co. 164 Wis. 295, 159 N. W. 944, that no restatement of it will here be made. That rule was recognized and approved in Bubb v. Milwaukee E. R. & L. Co. 165 Wis. 338, 162 N. W. 180. From the statement of facts it appears that after plaintiff had deposited the first frog he walked in a southwesterly direction for about fifty feet to the pile of frogs lying near defendant’s track. In so doing he had his back substantially toward the train coming south. Tie listened for signals but heard none, and stepped up to or .around the west end of the pile and stooped to lift without looking north to see if a train was coming. We assume he did not look north, for if he had he would have seen the train, which was plainly visible for a thousand feet hack. We are asked to say that such conduct on the part of a person required to work near a track is so clearly negligent that a jury’s finding to the contrary, even though approved by two trial judges, cannot stand. We are unable to reach such a conclusion, for it seems to us that reasonable men might
jSTo other assignment of error is of sufficient importance to merit discussion.
By the Court. — Judgment affirmed.