128 Wis. 86 | Wis. | 1906
Lead Opinion
'The following opinion was filed April 17, 1906:
Appellant’s principal contention is that the •court erred in overruling the motion for new trial, which counsel primarily supports by assertion that the evidence so ■overwhelmingly preponderates against plaintiff that refusal to set aside the verdict on that ground was an abuse of discretion. This position is wholly untenable if there was any credible evidence to sustain plaintiff’s contention as to the material facts. In such case, while the trial court has authority in its discretion to set aside the decision of the jury as likely in his judgment to work injustice, this court will not reverse •a refusal so to do. Flaherty v. Harrison, 98 Wis. 559, 562, 74 N. W. 360; Collins v. Janesville, 117 Wis. 415, 424, 94 N. W. 309. Eone of the cases cited by appellant’s counsel antagonize this rule, though he seems to think his attitude supported by a quotation from Wunderlich v. Palatine F. Ins. Co. 104 Wis. 382, 387, 80 N. W. 467, to the effect that this
When, however, any fact essential to a verdict is supported only by evidence thus rendered incredible, the setting aside such verdict is no longer discretionary with the trial court but a duty, failure of which is error reviewable on appeal. Flaherty v. Harrison, supra; Cawley v. La Crosse C. R. Co. 101 Wis. 145, 150, 77 N. W. 179; O’Brien v. C., St. P., M. & O. R. Co. 102 Wis. 628, 78 N. W. 1084; Musbach v. Wis. C. Co. 108 Wis. 57, 68, 84 N. W. 36; Bourda v. Jones, supra; Ellis v. C., M. & St. P. R. Co. 120 Wis. 645, 98 N. W. 942. In the light of this rule and the authorities we proceed to examine the evidence.
The only elements of fact upon which the evidence can be considered at all in conflict, except by the testimony of plaint
Blit almost equally conclusive are the facts against the theory that he could have received the injury which he suffered, at any other place than near where he was found. Even if we concede it possible that a man with a severed foot may, at the end of two hours, with no precautions against the hemorrhage, be conscious, even if alive, we still have the fact that all his movements which are disclosed by any evidence ■except his own are traced ujoon the snow by his blood, and that those movements are consistent with the fact that up to •the time the north-bound logging train approached him and he was seen 500 or 600 feet south of the south switch at Hixon on the track he had not received this injury. Between that point and the place of ejection from the passenger train the snow was absolutely free from those marks which he must have left had he passed over it with the injured foot. Of course, as plaintiff contends, there is the other physical fact that his foot was in fact injured in some way and, doubtless, by a railroad train. The evidence shows a situation in which such an injury is entirely within reasonable probabilities, wholly consistent with the known facts, except perhaps plaintiff’s own story. He was seen immediately in front •of an approaching train. He had been ejected at a lonely and almost uninhabited spot, and was, of course, anxious to 'find transportation therefrom. It is entirely within the probabilities that, as this train slowly approached to enter the switch, he attempted to board one of the cars, and, under the conditions likely to exist in mid-January, was unsuccessful, and fell so that he received the injury without his attempt being observed by the train hands as they went by to the northward. This theory is consistent with the testimony of the engineer of train No. 94 that he was crouching by the ■side of the track making signals as that train went south a few
Of course it is not at all necessary for the defendant to-prove how the injuries were received. It is only necessary that there should be some reasonable hypothesis to account for the fact of injury to deprive it of any strong probative force-in favor of plaintiffs theory that it was received at the time he was ejected from the passenger train two hours before he-was found. Where there are two reasonably'probable theories to account for an injury the burden is upon the plaintiff' to prove by some credible evidence that one which establishes defendant’s liability. Musbach v. Wis. C. Co. 108 Wis. 68, 84 N. W. 36. In the situation thus disclosed, the plaintiffs-uncorroborated testimony that he received -his physical injuries when ejected from the passenger train and that he was. picked up by the log train at a point north of Hixon was rendered incredible. The verdict awarding him damages for-that injury was wholly unsupported, and error was committed in refusing to set it aside.
The only other error assigned relates to a detail of the instructions not likely of repetition upon retrial, which, therefore, we need not discuss.
By the Court.- — Judgment reversed, and cause remanded' for a new trial.
Dissenting Opinion
The following opinion was filed May 9, 1906:
(dissenting). I cannot concur in the opinion of the majority of the court. I believe there was sufficient evidence to carry the case to the jury. The plaintiff testified that he was ejected.from the train at a point some three fourths of a mile north of Hixon, and was corroborated in his-testimony on this point by two credible witnesses. True,, these witnesses did not testify respecting the injury, since-
The learned and experienced trial judge who tried this case was in a better position and better able to judge of the weight and credibility of the evidence than this court. Harrigan v. Gilchrist, supra. As said in Bannon v. Ins. Co. of N. A. 115 Wis. 250, 255, 91 N. W. 668:
“When a trial court has refused to set aside a verdict or special finding of a jury, this court will not reverse such order merely because, in its opinion, the verdict is against the preponderance or 'great weight’ of the evidence; the deference which the court owes to the trial courts forbids such action. This court will reverse such a ruling only when there is no evidence to sustain the verdict or its finding, or where, though there be some evidence in its support, still the great weight of the evidence is against it, and that weight is so re-enforced by all the reasonable probabilities and inferences that it becomes overwhelming.”
The rule is also laid down in Beyer v. St. Paul F. & M. Ins. Co. 112 Wis. 138, 141, 88 N. W. 58, that
“If there is any credible evidence which to a reasonable mind can support an inference in favor of a party, the question is for the jury, and the court cannot assume to answer it, either upon motion for nonsuit or direction of verdict.”
The majority opinion rests upon the hypothesis that the testimony of the plaintiff is so incredible as to render it insufficient to support a verdict. As said in the opinion of the court, the crucial question is not just where plaintiff was ejected, but whether his foot was severed at that place. In order to adopt the defendant’s theory that plaintiff was ejected near Hixon we must not only disregard his evidence, but also the evidence of two other credible witnesses, who testified that he was ejected north of Hixon and that the train ■did not stop at Hixon. So, I think the jury would have been warranted in finding that the plaintiff was not put off at
The remaining question is whether such a case of physical and established facts inconsistent with the testimony of the plaintiff was made sufficient to render his testimony respecting the injuries unworthy of belief. I think the questions of where he was put off and whether he was injured at that place were for the jury. Whether he was picked up at a point 500- or 600 feet south of the south end of the passing switch at Hixon, or farther north, to my mind has but little bearing upon the credibility of the plaintiff’s evidence. Assuming that he was picked up as claimed by defendant, that fact in •connection with other evidence would still leave the credibility of his evidence for the jury. The plaintiff may honestly have been mistaken as to where he was put off and picked up. He was unfamiliar with the place, having been over the' road but once before, and not having seen it after the injury until a few days before the trial and about three years after the injury. I think, also, the testimony of plaintiff may be reconciled with the evidence of the trainmen as to the movement of train No. 94, and that the testimony respecting a man on the track before the train passed and something that looked like a dog crawling off the track is not very significant. There is no proof that the man seen was plaintiff, or any positive testimony that the object crawling was a man. The proof is that, when the 6 :20 p. m. south-bound train passed,, some of the crew saw a man beside the track in the snow. This was consistent with the plaintiff’s evidence, except as to> the place where he was picked up. He testified that immediately after the injury he started to crawl south on the track and thinks he crawled, sixty or seventy rods. Of course, the distance he crawled, as well as the distance from Hixon to-the point where he was ejected from the train, was to some extent, at least, a matter of conjecture. It is not at all improbable that he may have been honestly mistaken as to the exact
I do not think there was evidence produced by defendant sufficient to render the plaintiff's positive testimony so incredible as to warrant this court in disturbing the judgment of the lower court in refusing to set aside the verdict.
Concurrence Opinion
I concur in the opinion of Mr. Justice EeewxN