88 Wis. 402 | Wis. | 1894
The evidence on the part of the plaintiff tends to prove that she and another person were riding in a phaeton with Mrs. Jones, who was an experienced driver; that Mrs. Jones was siting on the right-hand side of the phaeton; that the horse was going west on a walk, between the curb of the street and the south rail of the south track; that a sprinkling wagon was approaching from the west, about a block away; that to avoid the sprinkling wagon the driver, Mrs. Jones, attempted to cross the defendant’s tracks by turning and going diagonally in a northwesterly direction, at an angle of about forty-five degrees; that the horse had crossed the south track, and also the space between the two tracks, and the hind wheel of the phaeton was on the north track when the collision occurred; that the top of the phaeton was up; that there were no curtains on the sides; that before and after turning the driver and the plaintiff were both listening for a car; that just after so turning the driver looked back along the track a distance of about forty-five feet to see whether a car was approaching; that she saw no car; that just as she turned the plaintiff looked back along the track a distance of one hundred feet, and. saw no car; that neither the plaintiff nor the driver nor the other person mentioned knew of the approach of the car, or heard any signal, until it was within •eight or ten feet of the carriage; that the car was moving at an unlawful rate of speed,— to wit, exceeding ten miles an hour; that the collision occurred instantly after they discovered the car. The evidence on the part of the defendant tends to prove that the phaeton was at the time going nearly straight across the track; that the speed of
Counsel for the defendant are undoubtedly right in contending, in effect, that a person approaching a railway track with the view of crossing the same is bound to use his eyes in looking and his ears in listening, and if he fails to do so and is injured in consequence, then he cannot recover, even though the defendant was guilty of a want of ordinary care. The decisions of this court to that effect are too numerous to mention. But, under the peculiar circumstances of this case, we are constrained to hold that the evidence was sufficient to justify the trial court in submitting to the jury for determination the question of contributory negligence.
Among other things, the court charged the jury that: “ If you find a witness — conclude a witness — has testified falsely as to any material fact in. the case, you are per-onitted to disregard all of that witness's testimony, unless it is supported by other evidence.” This instruction authorized the jury to disregard all the uncorroborated testimony of anjr witness if they reached the conclusion that he had, even through inadvertence or mistake, sworn falsely as to any material fact. This was error. As a general rule the question of the credibility of witnesses is for the jury. If they find that a witness has testified falsely as to a material fact, they are, of course, at liberty to disregard such false testimony. But before they should apply the maxim, ‘‘False in one thing, false in all things,” they should find
The portion of the charge quoted was followed by this: “After all, gentlemen, there is, when a witness is testifying, an indefinable something that rings of truth, that in spite of and in the face of everything you have a right and should give heed to.” This made it the duty of each juryman to define for himself this “indefinable something,” and then to give heed to it, “ in spite of and in the face of everything” else, which, in his mind, may have included a preponderance of the evidence. This was an invasion of the province of the jury. Besides, it gave them an intangible and unwarranted license, and hence was misleading. “Every party to an action at law in this state has a right to insist upon a verdict or finding based upon the law and the evidence in the case, and not, in the absence of evidence, upon mere inference, conjecture, and personal experience.” Sherman v. Menominee R. L. Co. 77 Wis. 22. True, the jury were told that the verdict must be based upon the evidence given in the case, and upon nothing else. But this did not cure the error. Sears v. Loy, 19 Wis. 96; Imhoff v. C. & M. R. Co. 20 Wis. 344. The two instructions were inconsistent, and tended to confuse the jury. Ibid.
By the Court.— The judgment of the superior court of. Douglas county is reversed, and the cause is remanded for a new trial.