Lemke v. Chicago, Milwaukee & St. Paul Railway Co., 39 Wis. 449

Lemke v. Chicago, Milwaukee & St. Paul Railway Co.

39 Wis. 449 | Wis. | 1876

LyoN, J.

If the special finding of facts is inconsistent with the general verdict for the plaintiff, the former must control such verdict, and the defendant is entitled to judgment. B. S., ch. 132, see. 32. The county court held that the special finding is inconsistent with the general verdict, but did not give, and was not asked to give, judgment for the defendant. By arresting judgment, the court merely refused to give judgment for the plaintiff on the general verdict in his favor, and there stopped. If the court took the correct view of the special finding of facts, the defendant asked for and obtained only a portion of the relief to which it was entitled, and was entitled to all that it obtained. Hence, conceding for the purposes of the case, what counsel -for the plaintiff claim, that, under the code, it is irregular to arrest judgment in a civil action (a proposition not here determined), it is apparent that the plaintiff was not injured by the practice adopted in this *454case, if tlie court determined correctly tbe effect of tbe special finding. Indeed, it would seem that be is benefited thereby to tbe extent of tbe defendant’s costs, which, as a matter of course, be would be adjudged to pay were there a judgment for tbe defendant.

Tbe controlling question in tbe case is, therefore, Do tbe facts found specially by tbe jury entitle tbe defendant to judgment? If this question be answered in tbe affirmative, tbe order appealed from should not be disturbed; if in tbe negative, tbe order should be reversed.

Tbe general verdict for tbe plaintiff rests entirely upon the hypothesis that .the defendant held tbe plaintiff’s goods as a common carrier,, and not as a warehouseman, when such goods were burned. Tbe case is destitute of evidence showing, or tending to show, that tbe defendant was guilty of any negligence which caused or contributed to tbe destruction of tbe goods; and it is understood that tbe answer to tbe fifth question submitted to tbe jury negatives tbe existence of any such negligence. So if tbe defendant held tbe goods, when tbe same were burned, as a warehouseman only, it is not liable for tbe loss of them. Wood v. Railway Co., 27 Wis., 541.

Tbe special finding of facts shows conclusively that tbe goods arrived at their destination on Saturday, December 5th, at 5.30 P. M., and remained in tbe defendant’s depot uncalled for until destroyed, and that tbe fire which destroyed them commenced on Tuesday, December 8th, at about 11.20 A. M. Tbe goods were shipped to Watertown within a reasonable time after they were delivered to tbe defendant at Milwaukee to be so shipped; and, in tbe absence of proof to tbe contrary, tbe presumption is that they were ready for delivery to tbe plaintiff’s consignee at any time after they were received at tbe depot. This gave tbe latter all of Monday tbe 7th, and until nearly noon of tbe 8th of December, to take tbe goods from tbe depot. If that was a reasonable time for that purpose, tbe liability of tbe defendant as a common carrier in *455respect to tbe plaintiff’s goods bad ceased when the goods were burned. It is worthy of consideration, although not a controlling fact in the case, that the consignee was at the depot but- a few hours before the goods arrived there, and lmew that they might reasonably be expected on any future train, yet lie failed to call for them again until after the fire on the 8th, having (as he testified) gone some miles into the country on his own or the plaintiff’s business. Such absence cannot operate to increase the liability of the defendant, or to extend the time during which it held the goods as a common carrier. Within the rule laid down in Wood v. Crocker, 18 Wis., 345, we are of the opinion that the consignee had a reasonable time, after the arrival of the goods at Watertown and before they were destroyed, in -which to remove them from the defendant’s depot.

But it is argued by the learned counsel for the plaintiff, that the question of reasonable time is for the jury; and they cite cases decided by this court to sustain the position. The rule doubtless is, that whenever there is a conflict of testimony in respect to material facts bearing upon the question, or when the facts are doubtful or complicated and the court cannot satisfactorily determine their weight or importance, the question as to whether a reasonable time has or has not elapsed should be submitted to the jury, under proper instructions. But when, as in this case, the facts relating to the question are few and simple, and are conclusively established by a special finding or by the undisputed evidence, it is for the court to say whether a reasonable time has or has not elapsed for the performance of a given act.

We hold, therefore, that it appears .conclusively by the record, that the plaintiff or his consignee had, before the loss of the goods, a reasonable time in which to take them from the depot, and that the defendant is not liable for such loss.

The order arresting-judgment “in effect determines the action, and prevents a judgment from which an appeal might *456be taken” (Tay. Stats., 1635, § 11); and if it also affected a substantial right of tbe plaintiff, be might appeal therefrom. Rut inasmuch as the order gives the defendant less than it is entitled to, and deprives the plaintiff of nothing to which he is entitled, it cannot justly be held to affect a substantial right of the plaintiff, or, in any manner, to involve the merits of the action. For these reasons, and following the practice established in Noonan v. Orton, 30 Wis., 609, and Freeman v. Transportation Co., 36 id., 571, we must dismiss the appeal.

By the Gowrt. ■ — ■ Appeal dismissed.