Kausch v. Chicago & Milwaukee Electric Railway Co.

173 Wis. 220 | Wis. | 1921

ViNjE, J.

Error is claimed because the circuit court did-not dismiss the appeal of the Chicago, North-Shore &■ Milwaukee Railroad and send the case back to the civil court for correction of the judgment.-' Since it is apparent that it was a pure clerical mistake to render judgment against the Chicago, North Shore & Milwaukee Railroad instead of against the defendant herein, and since it was brought in and had its day in court without in any respect, so far as we can see, being prejudiced by the manner of its appearance, we conclude that the circuit court properly corrected the judgment instead of remanding the-case for. that purpose.

■. The plaintiff alleged, and the burden is upon him to prove, that the car stood still when he attempted to board it.- The negligence complained of was the sudden starting of the car while he was in the act of boarding it. No recovery can be had unless such negligence is established by a preponderance of the evidence and to a reasonable certainty, for it is the very gravamen of the action. And the burden of proof is upon the plaintiff .to establish it. .Nevertheless the civil court instructed the jury that the burden of proof was upon the defendant to prove the affirmative -of the issue presented by question No. 1. This was error. The court should have instructed the jury that the-burden of proof was upon the plaintiff to establish the fact that the car was not in motion when he attempted.to board it. Or, better still, the question should have been so framed as to call for plaintiff’s proving the affirmative by wording the.question as follows: Was defendant’s car standing still when plaintiff attempted to board it? Questions should always be so framed as to put the burden of proof upon the affirmative. This court has consistently held that the placing upon the wrong party of the burden of proof as to a material issue is prejudicial error where the jury finds against the party upon whom the burden has been wrongly placed. Parker v. Hull, 71 Wis. 368, 37 N. W. 351; Carle v. Nelson, 145 Wis. 593, 130 N. W. 467; Pennsylvania C. & S. Co. v. Schmidt, 155 Wis. 242, 144 N. W. 283.

It will be observed from an examination of the special verdict that nowhere was the plaintiff required to prove the issue tendered bjr it. The second question could be answered in the affirmative as a matter of law where, as here, the conductor said he saw plaintiff attempting to board the car— assuming it was standing still, as the question does. The defendant and the conductor claim the car was moving when plaintiff attempted to board it.

Since there must be a reversál because the burden of proof was wrongly placed upon defendant as to a material issue found against-it, it is perhaps not necessary to refer to other errors claimed except to those that may occur again. Of such there are two.

There was conflict in the testimony as to whether defend-, ant’s servants assisted plaintiff to get on the car after he was hurt. He did get on the car. A witness for plaintiff, one Wawrzyniakowski, was permitted four or five times to repeat a conversation he had with the conductor of the car after the accident. Plaintiff’s counsel, during the examination, call it an argument. Each time this in substance was elicited from the witness: “I told him this way. You ought to pick the man up. You haven’t pity on a man. They have pity for a dog and take him to the gutter. You don’t have pity for this man. Those are the words I said.” Repeated objections to this testimony were seasonably made as well as motions to strike it out, but without avail, and in the argument to the jury a number of changes were rung on the fact that defendant had no pity for a man but did have for a dog. One sample will suffice. “I will characterize it that they did permit him to lay out in the street just like a yellow dog. You did not care for him any more than for a yellow dog at the time.” The fact was that the street car stopped as soon as the accident was discovered and plaintiff proceeded as a passenger on it.

• Two young men, one fifteen years of age and the other twenty, testified in substance that they were passengers on the street car; that they saw plaintiff come out from near the end of-the automobile and attempt to get on the car while it was moving; that the reason they watched was because he attempted-to board a moving car; that there were few passengers' on the car and the conductor asked their names and ■ wrote them- down, and that they had talked with counsel .for defendant about the facts they could testify to. In commenting on this testimony to the jury counsel for plaintiff said: “The young men who testified on behalf of the railway company had been persuaded and caused to come in and perjure their young souls in this case;” and again', “I claim that there is. somebody else back of the scenes that induced these two young men to come into court and to testify to something that you, gentlemen, yourselves know and Mr. Tlelmuth knows was not true — 'do men who resort to such tactics deserve your- confidence and consideration?”

■ Judicial utterances condemning such arguments have been too frequent and emphatic to need repetition here. Brown v. Swineford, 44 Wis. 282; Andrews v. C., M. & St. P. R. Co. 96 Wis. 348, 71 N. W. 372; Sutton v. C., St. P., M. & O. R. Co. 98 Wis. 157, 73 N. W. 993. There is nothing in the case to warrant the implication that the young men had been persuaded or caused to come and testify falsely. Their evidence, in the opinion of counsel for plaintiff, may not have had much probative force, and that was a proper subject of legal argument, but not that there had been subornation of perjury.

So, too, the testimony of the conversation of the witness Wawrzyniakowski had with the conductor after the car started again was inadmissible for two reasons. It was not a part of the res gestee, and, even if so considered, it was not an expression characterizing the injury. It was nothing but the scolding the witness gave the conductor because he claimed the latter had been remiss in his duty to aid plaintiff after he was injured. The evidence was incompetent for any lawful purpose. It could only excite prejudiceit could tend to prove no material fact in issue. We specially mention these two violations of proper practice, to the end that they may not occur again and perhaps cause a reversal should the jury find for the plaintiff.

By the Court. — Judgment reversed, and cause remanded for a new trial.