120 Wis. 443 | Wis. | 1904
A number of detail errors are alleged, which will be considered before proceeding to the main question on the merits of the case. Eirst it is claimed that it was error to admit evidence showing merely defective and unstable piling of the timber, because it is said that this was not the negligence complained of in the complaint. The consideration of this objection requires some further statement of the facts. In the complaint it is alleged that the defendants maintained a large crane or derrick in their yard near the pile of timbers in question, which was used to unload cars, and which had a swinging arm and a windlass and cable to which were attached chains and hooks for lifting timbers from cars, and that “defendants piled a number of large timbers, about fourteen feet long and twelve or fourteen' inches wide and of about the same thickness, in said yard, close to Grand avenue, so that said pile of timbers extended lengthwise with said avenue, and a few feet from said walk, and about four feet high; that defendants negligently and carelessly placed a large timber about fourteen feet long and twelve or fourteen inches wide and of about
Another contention made by appellants is that the answer to the fifth question of . the special verdict should have been stricken out, because there was no credible evidence to support it. By this answer the jury found that the plaintiff was six and one half feet west of the sidewalk when the timber' started to fall upon her. The significance of this finding is that it determines the fact that the plaintiff and the timber which fell were within the limits of Grand avenue when the ■accident happened. Examination of the record shows that there was much evidence to the contrary of this finding, and it might well be that, were the question an original one, we should be compelled to hold that the evidence preponderates •against the finding; but there was evidence which tended to •support the conclusion of the jury, and we cannot say that it was incredible, nor that all the reasonable probabilities and inferences were the other way; .hence we cannot reverse the ruling of the trial court upon the question.
We pass now to the main question-in the case, namely, whether a verdict for the defendant should not have been directed upon the uncontradicted evidence, or, in default of •such a direction, whether judgment should not have been
As previously indicated, we do not decide what would be the result had it appeared that the pile of timber was not upon the street, but upon the defendants’ premises; nor do we intimate any opinion thereon. In the present case the pile of timber was in the highway, and this fact must be kept in mind at all times in determining the effect of the principles laid down.
By the Court. — Judgment affirmed.