Larson v. City of Eau Claire

92 Wis. 86 | Wis. | 1896

PiNNey, J.

1. We have examined the evidence, and are of the opinion that it was sufficient to sustain the verdict. The principal point made against it in this regard is that the testimony of the three witnesses on the part of the plaintiff as to the length of time the highway had been in an unsafe condition, prior to the happening of the accident, found by the jury to have been three weeks, was incredible. There was no objection' to the competency of the witnesses, and we think there was no inherent improbability in their statements. The credibility of their testimony was solely a question for the,jury. It is urged that the verdict ought to have been in accordance with the preponderance of the evidence, but that it was against it. The circuit court was satisfied with the verdict. Error, cannot, in general, be assigned on this ground, there being evidence sufficient to sustain the verdict. The remedy against a verdict, on the ground that it is against the preponderance of evidence, is by motion for a new trial, which is addressed to the discretion of the court, with the exercise of which this court will not interfere, except in cases where it is quite clear that such discretion has been abused. No such ground appears in the present case. An abstract and review of the evidence would serve no useful purpose. The first, second, and fifth assignments of error are not well taken.

2. Whatever question may have existed as to the admissibility of the testimony of Keefe as to the size of the rut and its condition when he saw it two days after the accident, when the coal ashes had been dug out, was substantially removed by the testimony of the defendant’s witness Pierce, who put the ashes in the rut. When taken in connection with the evidence given by him and numerous witnesses, and in view of the fact that there had been no important change in the condition of the rut, as the evidence tended to show that the coal ashes, only, had been dug out of it, it cannot be said that error intervened on this point, prejudicial to the defendant.

3. The propriety of the ruling limiting the number of witnesses the defendant might examine as to the condition of the highway, which resulted in the exclusion of the testimony of Riley on that point, though not made until he was called, is not an open question in this court. A reasonable limitation of the number of witnesses upon a single question is within the discretion of the trial court. Meier v. Morgan, 82 Wis. 289; McConnell v. Osage, 80 Iowa, 296; Bays v. Herring, 51 Iowa, 286; Thompson, Trials, § 853. It is the better practice, no doubt, to impose the limitation' at the commencement of the trial, or as soon as the necessity for it is reasonably apparent. In the present case the defendant had examined nine witnesses, a greater number than the plaintiff, on the point in question. It cannot be admitted that, as a matter of right, the defendant might continue indefinitely to call and examine witnesses in respect to it. Perhaps a hundred or more might have been found competent to testify on the subject. It would be highly absurd t'o hold that the court was bound to sit and hear the testimony of witnesses .on this point, without limit of number. •Certainly the court must possess a discretion to limit the party to a reasonable number. Whatever may have been held elsewhere on the subject, we see no good reason for changing the rule already established in this state. There is nothing to show any abuse of discretion on the part of the court. The defendant had certainly examined a reasonable number when the court made its ruling. The remaining assignments of error are therefore untenable.

By the Court. — The judgment of the circuit court is affirmed.