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

91 Wis. 38 | Wis. | 1895

WiNslow, J.

Tbe practice in this- case is peculiar. At tbe close of the evidence tbe circuit judge prepared a special verdict. This so-called special verdict consisted of a long statement or recitation of facts (being tbe statement set forth .at length in tbe statement of tbe case), all of which he states are established by uncontradicted testimony, followed by five questions for the jury to answer. Tbe jury having answered the questions, motions were made by both parties for judgment upon the special verdict. The motion of the plaintiff was granted, and that of the defendant denied, and judgtnent was rendered for the plaintiff. Thereupon the .appellant prepared, and the judge has signed, a certificate reciting the motions for judgment on the verdict, and the rulings thereon, and the defendant’s exceptions. The certificate then states that tbe “ special verdict found by court .■and jury” covers and includes all the facts which the court deemed to be essential to the determination of the case, .and that it was upon these facts, which the court found to be sustained by the evidence, that the court overruled the defendant’s motion for judgment and ordered judgment for the plaintiff. This certificate is called a bill of exceptions. As will be seen, it contains but one exception, and that is the exception to the overruling of the motion for judgment upon the verdict. Thus it will be seen that the evidence is not before us.

Indeed, it is a serious question whether anything is before us save the pleadings and the five questions and answers which properly constitute the verdict of the jury. The recitation of facts preceding the verdict is entirely anomalous. Certainly, the jury have not found these facts. But it may be that the statement in the bill of exceptions, that the court found the facts contained in the special verdict to be susr tained by the evidence, should be held to apply to this recitation, thus bringing the case within the rule laid down in Hart v. West Side R. Co. 86 Wis. 483. However this may be, the parties have treated this recitation of facts as a part of the verdict, and as, in the view we take of the case, it makes no difference with the result, we shall also treat the statement as-a part of the special verdict.

We then learn from the bill of exceptions that these were the facts which the circuit judge deemed essential to the-case, and upon which he acted in ordering judgment; but we do not know, and cannot know, what other uncontra-dicted facts may have been established by the evidence, nor what bearing they may have been entitled to have upon the-determination of the motions for judgment. In effect, there-is nothing before us but the pleadings, verdict, motion for judgment, ruling and exception, and the judgment. In such case we must presume that every averment of the complaint not negatived by the verdict was proven upon the trial; McHugh v. C. & N. W. R. Co. 41 Wis. 15. Neither the statement of facts in the special verdict nor the certificate in the bill of exceptions negatives this presumption. When,. •therefore, the appellant argues that the statement of facts shows that Commerce street had been vacated and consequently was not a highway, it is very easy to indulge the presumption that there was further unoontradicted evidence in the case showing that the street had been subsequently legally reopened or dedicated to the public use. Such presumption contradicts nothing contained in the verdict. When, also, it is argued that the railroad company had no notice of any defect in the crossing, it may be at once presumed that there was ample proof of such notice, as there is nothing to contradict this presumption in the verdict.

It is argued by the appellant that the only defect found by the jury is that the rail was an inch higher than the planks of the crossing, and that this court should declare, as matter of law, that this is not a defect. Probably there are many cases where a court would be entirely justified in so ruling, but in the present case not only do the jury find that the elevation of the rail an inch above the plank was a defect, but they find generally that the plaintiff was thrown from his sleigh by reason of the crossing being insufficient and unsafe, not specifying the particular insufficiency which caused the accident. Now, the complaint alleges a number of facts not controverted by the verdict, and which we must therefore presume to have been proven, tending to show that the crossing was defective. Eor instance, it is alleged that the track crossed the street obliquely at a very sharp curve, so that the top of one rail was two inches higher than the top of the other. Now, we are unable to say that the situation arising from a sharp curve and slant to the track as it crossed the highway might not be such as to make the question whether an elevation of the rail an inch above the crossing was negligence a proper one for the jury. Indulging the presumption which we must indulge in to support the verdict and judgment, we cannot say, as matter of law, that there was no evidence tending to show negligence on the part of defendant.

It is argued that the evidence shows that the plaintiff was-guilty of contributory negligence. We cannot so hold.

By the Oourt.— Judgment affirmed.