104 Wis. 272 | Wis. | 1899
The main question for our determination is whether, under all the evidence, the court ought to have submitted the case to the jury. . When the defendant made the motion to direct a verdict the question presented to the trial court was one of mixed law and fact. It became his duty to weigh and consider the testimony in the case, and to apply to it those rules of law which are deemed controlling in cases of this kind. His duty was greater than in cases where a nonsuit is asked. Oftentimes in those cases the evidence will leave some of the controlling questions in doubt. There may be room, upon the facts, for different inferences or conclusions to be drawn. The court must always construe them in the light most favorable to the plaintiff. Giving them all the weight which the jury would be at liberty to find for them, the court must be able to say that there is no evidence to go to the jury, in order to justify a nonsuit. But in cases where a verdict is asked to be directed the situation is sometimes very different. It is then the duty of the court to pass upon all the testimony. The testimony of the defendant many times clears up the doubt, and makes it conclusive that only one possible inference can be drawn from the facts. Sometimes proof is offered by
The town of Madison was building a section of road near-Wingra Park. The town had arranged with the authorities of the city of Madison for the use of its steam roller. The roller was being taken to its destination by the city employees. It arrived at a point on Monroe street about 150 feet east from the railroad crossing, pulled out to one side,, and stopped. The plaintiff approached from the west, riding-with her husband and two daughters. At a point in Win-gra Park near Mr. Scott’s store they were notified by the witness Bull that the roller was below, and to turn off on Grant street. A little further along, and about 550 feet
But counsel for plaintiff are driven to adopt another theory. They claim the evidence shows that the roller was suddenly started as the team, approached, which frightened the team and caused the accident. It is a little significant that this theory did not creep into the case until after the plaintiff had been examined as an adverse party. In her original complaint she made no claim of this kind. On her examination she testified she saw the roller move just as the horses got scared. On the trial she said she saw the roller just as she crossed the railroad track, and that when she first saw it it was moving slowly. The evidence of her daughter Julia is quite inconclusive. She says she saw the roller in the act •<?f moving, or at least it was moving slowly. Another daughter says the roller was puffing when she first saw it. She said: “ I heard the puffing, and seen the smoke. I think I ;saw the roller move.” An inspection of her testimony léads to the conclusion that very little weight can be given thereto. She was evidently very simple-minded, and became’involved in several contradictions. This testimony is contradicted by every other witness, and by every reasonable probability in the case. So cogent and potential are the facts, circumstances, surroundings, and reasonable probabilities, that we feel that the court committed no error in declining to submit the case to the jury. Cleared of the rubbish, and viewed in the light of the entire situation, we agree that the evidence falls far short of establishing any actionable liability on the part of the city. Such being our conclusion, it becomes unnecessary to discuss the rulings upon the admission of testimony. None of the rejected testimony had any tendency to relieve the case of the imperfections suggested.
By the Court.— The judgment of the circuit court is .affirmed.