101 Wis. 292 | Wis. | 1898
The errors assigned, and which we feel called upon to consider, are as follows: (1) Improper admission of evidence; (2) improper remarks of counsel for plaintiff; (3) failure of the special verdict to cover all the issues in the case; (4) refusal of the court to set aside the verdict.
One of the serious questions litigated on this trial was as to the exact location of Rudiger at the time of the explosion. The plaintiff insisted that he was standing by the baggage, east of the west post of the gap, while the defendant insisted that he was west of the gap. One Levi W. Myers was produced as a witness for plaintiff, and was asked the following questions: “Where were you standing at the time you' received the injuries apparent on you, with reference to the east gap?” This was objected to, “unless the witness proposes to testify with regard to the injuries to Mr. Rudiger or to Mr. Rudiger’s whereabouts.” The objection was overruled, and the witness answered: “ It is a question whether I was standing or running at the time I was struck. At the time I first noticed the explosion, I was standing just back of the mail matter. ' I mean southwest. Q. Where were you, with reference to an imaginary line drawn from the west line of the east gap to the mail matter ? A. I think perhaps I was a few feet — maybe four or five feet — west of it.” Witness was one of the few who were severely in-
Admitting for the purpose of the discussion that the complaint and answer form an issue as to the western limits' of the temporary station, there was no request that it be submitted to the jury, and it was not so submitted. Defendant prepared a list of twelve questions to be submitted as a special verdict, but it contains nothing bearing upon this point. There is nothing in the requests to charge the jury, handed up by the defendant, that calls attention to any such issue. One of such requests given by the court is as follows: “ The complaint alleges that a temporary station was selected by the defendant’s officers and servants, where the baggage, mail, and express was deposited on defendant’s right of way, and that Leopold Rudiger, deceased, went to and remained at that place by direction of the-defendant. Under this allegation the plaintiff cannot claim, nor are you at liberty
In view of the evidence offered, we think the court should have submitted one of the questions requested. Question 4 submitted reads, “Was Leopold Rudiger, at the time of receiving his injuries, west of the east gap ? ” Question 4 requested is, “ Was Leopold Rudiger on the right of way -west of the east gap at the tíme of the explosion ? ” All of the witnesses who testify on the subject say that a sufficient time elapsed between the warning of the explosion and the time when the fire reached them for them to have gone some little distance. It also appears that everybody ran. It might be that Rudiger was east of the gap when he received his injuries, and west of the gap when the explosion occurred. At any rate, the contest was so close that the question, requested should have been submitted.
The jury fixed the plaintiff’s damages at $4,000. This is claimed to be excessive. Deceased was a farmer, sixty-five years of age, robust and healthy. The plaintiff was sixtv-four. He had seven children living, all married. A son lived with him and worked on the farm. The product of their joint earnings was about $800 annually. No proof was given as to their expenses, or how much of the income from the farm was contributed to plaintiff’s support. Neither was any testimony given as to the value of such support, or as to their domestic relations, or of any fact or circumstance upon which to base expectation of the widow’s ultimately receiving a share of his earnings as his heir, other than that they were husband and wife and lived together. Decedent’s expectation of life was between ten and eleven years. Under the statute (sec. 4256, E. S. 1878) the jury were at liberty to give “such damages, not exceeding five thousand dollars, as they shall deem fair and just in reference to the pecuniary injury resulting from such death to the relatives [in this case, to the widow] of the deceased.” Schadewald v. M., L. S. & W. R. Co. 55 Wis. 569. In fixing such damages the jury should include the value of her support and protection by the deceased during the time he would probably have lived. They should also consider the addition that the earnings of deceased would probably have made to his property,
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.