120 Wis. 197 | Wis. | 1904
Eespondent recovered damages upon the verdict of the jury. He alleged the injuries resulted from appellants’ negligence in delivering copperas to him instead of Glauber’s salt, as he requested, for use as a medicine for his horses. Appellants attack the judgment upon the ground that the verdict is perverse and contrary to the evidence. An examination of the record discloses that it is not certified that
It is, however, apparent from an inspection of tbe evidence before us that tbe jury were warranted in finding as they did. Tbe main questions submitted to tbe jury were: (1) Did appellants, at tbe time alleged, sell and deliver copperas to respondent in place of Glauber's salt? and (2) Did respondent’s borses become sick as a result of feeding tbem tbe material procured from appellants ?
Respondent asserts and appellants deny that respondent-received copperas when be called for Glauber’s salt. Tbe evidence submitted by tbe parties upon tbis question was in conflict, and tbe court submitted tbe issue to tbe jury upon a general verdict. Tbe proof tending to support tbe position of either party was of such nature and weight as to require tbe trial court to submit it to a jury for determination.
It is, however, urged that there is no evidence tending to show that copperas fed to horses in such quantities as respondent fed it would be injurious to their health. We find no foundation for tbis contention in the evidence. There is considerable evidence tending to show that tbe borses were in a good state of health up to tbe time they were fed tbe cop-peras ; that they manifested tbe same symptoms of weakness, debility, and a systemic derangement within a week or ten days after they were fed it, and their symptoms showed they were affected from a like cause. No other cause was shown to which tbis condition was attributable, and tbe post mortem examination of respondent’s, as well as Mr. Tibbitts’s borses, sustained tbe claim that tbe conditions were such as copperas poisoning produces in borses.
In tbe light of tbis evidence, tbe issue was properly submitted to tbe jury, though there was strong and persuasive
It is argued that the court erred in receiving the testimony •of the veterinarian, E. S. Lawrence, and of Mr. Tibbitts, relating to the sickness and post mortem examination of Tib-bitts’s horse. The testimony hardly admits of dispute that ’the horse was fed copperas, procured from appellants by re■spondent at the time he purchased for himself; that it was fed to the horse by Mr. Tibbitts; that it became sick, manifesting symptoms like those of respondent’s horses, within the •■same period of time; and that upon a post mortem examination the veterinarian observed physical conditions corresponding significantly to the conditions observed in the horses of respondent, and indicating the cause of ailment and death of the animal. This evidence had a direct bearing upon the inquiry as to what effect copperas has upon horses when fed in the quantities shown in this case, and tended to corroborate respondent’s claim that the sickness of his horses was the result of appellants’ negligence. The testimony was properly admitted.
We are now to determine the question presented upon the .appeal from the order overruling appellants’ motion for a mew trial, and to vacate the judgment upon the ground of mewly discovered evidence. The issues litigated have been sufficiently stated. The affidavits upon which the motion is .based show that the alleged newly discovered evidence consists of statements and admissions of respondent, made during the fall of 1899, to the effect that his horses were poisoned by sal soda obtained from appellants in place of Glauber’s
We must hold that the action of the trial court in awarding judgment and denying the motion for a new trial is sustained by the record.
By the Court. — The judgment and the order of the circuit court are affirmed.