| Wis. | Sep 29, 1908
Primarily the appellant contends that the verdict is wholly without evidence in its support. With this contention we can in no wise agree. In the first place we think that from the mere fall of a timber, the constituent
Appellant further urges, however, that a conclusion of negligent unsafety could not be reached by the jury upon inference from the mere happening of the accident, for the reason that it was proved that within a few days of the accident there had occurred, as a result of rain, the partial collapse of a certain slanting floor of a large pocket, which at least might have caused the loosening of the hrace which fell on plaintiff. It is enough to say with reference to this contention that there was considerable evidence introduced by the plaintiff from which the jury, in their field as judges of the fact, might have found that such collapse could not have had any effect upon the general superstructure of the dock or upon the brace in question, considerably remote from the pocket. Hence, although, as declared in Musbach v. Wis. C. Co. 108 Wis. 57" court="Wis." date_filed="1900-10-30" href="https://app.midpage.ai/document/musbach-v-wisconsin-chair-co-8186751?utm_source=webapp" opinion_id="8186751">108 Wis. 57, 84 N. W. 36, it may be only necessary to prove the reasonable possibility of some cause other than defendant’s negligence in order to avert the inference of negligence from the accident itself, it was entirely competent for the jury in this case to say that no such possibility had been proved.
It is further contended that any inference which might otherwise be drawn from the fall of this timber that it was insecurely fastened, or the defendant guilty of negligence in relation thereto, was excluded by proof of the exercise of due care in inspection of the dock by defendant’s foreman
In this connection appellant complains of an instruction in the following words:
' “If the fall of the brace is explained or accounted for by the evidence in such a way as to overcome the presumption that I have stated to you, then your answer to the second question must be ‘No,’ unless there is other and further evidence on the part of. the plaintiff which, together with the effect of that presumption, satisfies you that the explanation offered by the defendant to show that ordinary care and vigilance were exercised by its representative fails to show satisfactorily by the greater weight of all the evidence on the subject that such vigilance and care were in fact so exercised.”
It is extremely doubtful whether any exception to this instruction was not waived, by a stipulation that in consideration of the taking up of defendant’s motion for a new trial in the absence of exceptions he would confine himself to cer
The first objection is to that portion which tells the jury that, if an explanation of the fall of the brace has been made such as to overcome the presumption of negligence arising from that fact, they may then consider all evidence on the subject, including the effect of the presumption. Counsel argues that, if the presumption has been overcome by defendant’s proof that it has exercised due care in certain respects, that presumption drops out of the case entirely, and that it was error to allow the jury to give it any further consideration. This view of appellant is based upon the idea that this so-called presumption is an artificial and conventional thing which either exists absolutely or is absolutely nonexistent. It is a little unfortunate that in some opinions the term “presumption” has been used instead of the word “inference.” There is in the conclusion drawn under the rule res ipsa loquitur nothing unnatural, artificial, or peculiar. Human experience and action continually involve inference of one fact from the known existence of another, and from every event like the fall of a brace such as this some inference must be drawn by every mind: certainly the inference that at the moment of its fall it was not sufficiently secure to prevent the fall under then existing circumstances. The fall of the timber is one of the thoroughly established facts, and the court was entirely right in authorizing the jury to take into consideration that fact and the necessary or natural inferences therefrom in connection with all other facts and evidence in reaching their conclusion whether or not it was due to defendant’s negligence.
Further, however, it is contended that in the last few-lines the instruction throws upon the defendant the burden of proof to negative its negligence; in other words, to show that due care and vigilance were exerted. If we can reason
Certain assignments of error upon admission of evidence present no ground for reversal nor justification for their discussion in this opinion. We cannot agree with appellant’s contention that the damages are excessive.
By the Court. — Judgment affirmed.