147 Wis. 216 | Wis. | 1911
The evidence necessarily took a wide range and is quite voluminous. The questions, however, calling for a decision upon appeal lie within a narrow compass. The first one is, Was plaintiff entitled to judgment upon the verdict returned by the jury? They found that plaintiff contracted pneumonia upon the train by becoming chilled owing to the cold and damp condition of the atmosphere in the car; that the condition of the atmosphere was such as to render it dangerous for healthy persons to sleep in it protected as passengers were in their berths. But they further found that a man of ordinary intelligence and prudence in charge of the car as the porter was, ought not reasonably to have anticipated that such cold and damp condition of the atmosphere would injure the health of a healthy person sleeping in his berth. There is nothing inconsistent in these findings. They found that a dangerous condition of the atmosphere did in fact exist, but that defendant had no reason to anticipate or know that it was dangerous. To sustain liability it is not enough to show that defendant permitted a dangerous condition to exist. It must also be shown that it was negligently permitted to exist. If defendant had no reason to anticipate any injury to any healthy person by reason of the atmospheric condition maintained it was not negligent. Green v. Ashland N. Co. 101 Wis. 258, 17 N. W. 722. The verdict returned by the jury therefore entitled the defendant to a dismissal of the action upon the merits.
Was the trial court warranted in changing the answers to questions 2, 3, and 4 from Yes to No ? As to question 2, it is sufficient to say that the utmost plaintiff can claim from any
Plaintiff, at tbe time of tbe alleged exposure, was forty-two years of age, in good health, and weighed about 150 pounds. He claims tbat be felt first-rate when be entered tbe car at Minneapolis; tbat be noticed nothing unusual about tbe temperature of tbe car at tbe time be entered; tbat be rode for a while in tbe smoking compartment, with tbe window open, but was not subjected to any draft and did not feel uncomfortable. About 9:30 in tbe evening be retired, and went to sleep about 10 o’clock. Later be was awakened by a noise like tbat of a torpedo, beard tbe trainmen talle, and knew tbe engine was cut off. He said tbe car seemed cold, but be called for no additional cover. On cross-examination be testified tbe car was comfortable when be awoke, and later, on direct examination, be testified tbat be then felt all right; tbat be went to sleep almost immediately; tbat be thought be slept about an hour or two, but could not tell just bow long; tbat be then woke up with a chill; tbat it was tbe chill tbat woke him up. He was so cold that he shook and tbe car seemed cold to him. He asked tbe porter for beat, and was told tbe engine was disconnected and tbat no more beat could be given him just then. He bad a high
It may therefore be said to be a verity in tbe case that from tbe time when plaintiff first awoke as they first approached tbe wreck to tbe time of tbe pneumonic chill no more than an interval of from sixty-five to seventy minutes could have ■elapsed; and it was during this time, it is claimed, that be ■contracted pneumonia. There is practically an entire absence of evidence to show that tbe temperature of tbe car was ■cold or damp or dangerous to sleeping persons during this night. At Barron, thirty miles west of Ladysmith, the maximum temperature on tbe 12th was seventy-six degrees, tbe minimum fifty-eight degrees. At Prentice, forty miles east ■of Ladysmith, tbe maximum temperature on that day was •seventy-five degrees, tbe minimum sixty degrees. These two ■places axe tbe nearest to tbe place of tbe wreck showing tbe ■exact temperature, and it is fair to assume that tbe temperature at Ladysmith did not differ very materially from that at Barron and Prentice, being in tbe same latitude and ■only from thirty to forty miles distant, west and east respectively, from these two places. Mrs. Calloway, a passenger upon tbe sleeper, testified that she was dressed in ordinary spring clothes, that she retired about 10 or half past 10 in the evening, undressed, and put on an ordinary sleeping gown; that before she retired she used no wraps or coats; that
Plaintiff claims there was a sudden drop of temperature in the car. This claim is wholly unsubstantiated by any direct evidence, and also by all reasonable inferences to be drawn from the whole testimony in the case. It does not appear that the doors or windows of the sleeper were open in the evening, except perhaps some of the deck-sash. But even if they were, in the absence of a strong wind, and there is no evidence of
On the evening of the 11th plaintiff took a Turkish bath at Minneapolis and remained in the bath rooms all night. During the day of the 12th he went to different offices and mills in the city of Minneapolis. There was a light shower during the afternoon, but he was not exposed to it. There is an entire absence of evidence as to what exposure, if any, plaintiff had been subjected to previous to the time he left Escanaba for Minneapolis on the night of the 10th. He testified, however, that he never felt better than he did when he left home and that he felt all right when he left Minneapolis on Saturday evening at 6:30.
The above is a fair summary of all the material evidence concerning the conditions under which plaintiff slept in the ear. If any legitimate inference can be drawn therefrom it must be to the effect that plaintiff’s pneumonia was not caused by the atmospheric conditions that obtained in the car while he slept or while he was awake. But it is not necessary, in order to sustain the action of the trial court, to draw any such inference. If it appears that it cannot be said with any reasonable certainty that plaintiff’s pneumonia was caused by the atmospheric conditions of the car, or that they were such as to render it dangerous for healthy persons to sleep therein, protected as the passengers were, then the court’s action must be sustained. Verdicts cannot rest upon mere conjecture.
By the Court. — Judgment affirmed.