McGowan v. Chicago & Northwestern Railway Co.

91 Wis. 147 | Wis. | 1895

' PiNNey, J.

1. The general rule is that after the evidence of the defendant is closed the plaintiff will be confined to rebutting evidence, and will not be allowed to produce original or direct evidence on his part, or go into his original-case ¡again; but the rule is not inflexible, and the court may, in its discretion, allow or refuse to receive such evidence. Campbell v. Moore, 3 Wis. 771. The plaintiff or party' holding the affirmative must try his case out when he commences, and is bound to introduce all the evidence. on his side,- except that which operates merely to answer, avoid, or qualify the case as made out. by his' adversary’s proof. At ■this alone the evidence in reply must be directed, but for sufficient- reasons it .may be found advisable to depart from-■the rule in order to attain complete justice; .When this ought to be done must be left to the sound discretion of the court, and in general its action in this respect cannot be assigned as error. Hastings v. Palmer, 20 Wend. 225. This discretion, however, must not be exercised so as to deprive or abridge the right of a party against whom it is produced to rebut it. It is no objection to the reception of such evidence that, in addition to rebutting the defense or case of the party against whom it is offered, it incidentally tends to corroborate or sustain the case made in chief. 1 Thomp. Trials, §§ 346, 348; Winchell v. Winchell, 100 N. Y. 159, 163; Ankersmit v. Tuch, 114 N. Y. 54. It is evident that the plaintiff and his counsel both knew of the existence of the testimony sought to be introduced as rebutting, and had the witnesses in attendance before the close of the plaintiff’s case, and in fact examined, one of them in support of his original case, but without, any allusion to the matters thus offered. We cannot say, upon the record before us, that this evidence was unfairly withheld to surprise .the defendant, or that the court ought not, in the exercise of its discretion, to have received it when offered. Doubtless the court should have received evidence on the part of the defendant in reply, and should have taken such course .as to protect the substantial rights of the defendant; but the record fails to show that the defendant was prejudiced by the ruling or by any denial in this respect.

2. Whether the negligence of the defendant was the proximate cause of the plaintiff’s injury was a material and substantial question, and one sharply contested. The defendant had a right to have that question fairly and plainly submitted to the jury, and passed on by the special verdict; and, although „the form of the special verdict and manner in which the case is to be submitted are largely in the discretion of the court, it would ’ seem to be advisable in such cases that the questions should be by single, direct, and independent propositions, admitting of an affirmative or negative answer. Unless tbe question of proximate cause is fairly and substantially answered by tbe special verdict, no judgment can be given on it, and a new trial will be necessary. Kreuziger v. C. & N. W. R. Co. 73 Wis. 158; Jewell v. C., St. P. & M. R. Co. 54 Wis. 610, 618; Kerkhof v. Atlas Paper Co. 68 Wis. 674. It was not enough to entitle tbe plaintiff to recover to sbow that bis injury was in fact tbe natural consequence of tbe act or omission of tbe defendant, but it must have appeared that under all tbe circumstances it might reasonably have been expected that such an injury would result. A mere failure to ward against a result which ■could not reasonably have been expected is not negligence. Atkinson v. Goodrich Transp. Co. 60 Wis. 141, 156. Tbe plaintiff was not entitled to recover merely because tbe injury be bad received was in consequence of tbe defendant’s track and roadbed having not been maintained and kept in repair. In order to warrant a recovery, it must have appeared that its failure in this respect was tbe result of negligence on its part, and that a person of ordinary intelligence and prudence might have- expected, as tbe result of such negligence, that such an injury would have occurred. It is only by proof of these indispensable facts that an unbroken connection between tbe wrongful act and the injury can be established, and so constitute a continuous succession of events so connected as to make a natural whole and show that tbe defendant’s negligence and the injury of tbe plaintiff stand in tbe relation of cause and effect. Tbe gist of tbe action is negligence on tbe part of tbe defendant, and such relation of cause and effect could be established only by thus showing that tbe negligent act or omission of tbe defendant caused tbe injury and was its proximate cause.

Tbe defendant requested tbe court, in this view, to submit to tbe jury a question clearly within tbe issue, “ Did tbe defendant have any reason to apprehend such a sinking of tbe roadbed and track thereon? ” In bis complaint the plaintiff attributed his injury to a sudden sinking of the roadbed and track where he was engaged in coupling cars. The court refused to submit this material question, and we are unable to see that it was in substance embraced in or submitted by the special verdict. In answer to the second and third questions, the jury found that the sidetrack was not in a reasonably safe condition for the purposes of a sidetrack, and that at the time of the accident there was a sinking of the roadbed, occurring suddenly, at the place of the accident. Thus far nothing is found as to its cause. The next question is simply whether the defendant was guilty of negligence which occasioned the injury, and, if so, what was it ? This is answered, “Tes; through neglect to keep the road in proper repair,” but there is no finding in the verdict that the sinking of the roadbed had anything to do with .the- accident, although the complaint charged that this was the cause of the injury; and there is no subsequent reference in the special verdict to that matter. .The fourth question and answer do not find that a person of ordinary intelligence and prudence would have reasonably expected the-injury in question as a consequence of the imputed negligence and neglect to keep the road in proper repair. The fifth question is not very clearly expressed, but conceding that it refers to the ■ fourth finding, and, with its answer, is to the effect, upon a liberal construction, that the defendant, by the exercise of ordinary care and prudence, “ could have discovered and repaired the came of the accident,” namely, the want of proper repair of the road, it wholly fails to find that the defendant’s negligence Was the proximate cause of the plaintiff’s injury, or that the want of repair, even though negligent, was such that a person of ordinary intelligence and prudence would have reasonably expected that the injury in question would have happened in consequence of it. The. finding that, the defendant could, “ by the exercise of ordinary care. and prudence, have discovered and repaired thé cause of the ac'cident (the defective condition of the roadbed) before the accident occurred,” is not, of itself, sufficient, because it leaves the question of proximate cause untouched and still at large. It was error to refuse to submit the question proposed by the defendant’s counsel. "We do not find it necessary to decide that the fourth question and answer may not show sufficiently, in general terms, that the defendant was guilty of negligence which caused the plaintiff’s injury, and that such finding would not sustain a judgment for the plaintiff] The question is a compound one, and very defective in form. We hold that the defendant had a right to have the rejected question submitted, so that the question of proximate cause might be fairly considered and decided by special answer, in view of the rule of law as to what constitutes such cause, so that the finding on that point might be really a special one and not merely a general conclusion.

. It is.strenuously objected to the.fourth and fifth questions •as framed, and the answers to them, that, as already stated, it does not appear that the matters embraced in them have any relation to or connection with the alleged cause of action stated in the complaint, except in point of time and place, or to the fact established by the third finding, that “ at the time of the accident, a sinking of the roadbed and track occurred suddenly at the place where the accident occurred,” and so it does not appear from the verdict whether or not it rests upon the substantive charge contained in the •complaint or ón extrinsic matters. A verdict must be certain, at least to a common intent. It must directly, fairly, and fully respond to the material issues in the case. It •should be sufficiently certain to 'stand as a final decision of the special matter with which it deals, for it is of the utmost importance that the record should be definite and certain and show unequivocally what matters have been adjudicated, so that the decision may be final regarding- the questions in issue. 28 Am. & Eng. Ency. of Law, 384, and cases in notes.. In Carroll v. Bohan, 43 Wis. 218, 221, it is" said that “ special verdicts are worse than useless if courts do not submit for them single, direct, and plain questions, and insist upon positive, direct, and intelligible answers. Indirect, evasive, uncertain, or unmeaning answers should not be received;, and when none other can be drawn from a jury the verdict should not stand for a moment.”

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.