174 Wis. 181 | Wis. | 1921
In the view that we take of the case it is necessary for us to consider but one question raised here, and that is whether or not the plaintiff was engaged in interstate commerce as found by the trial court. The court found that the plaintiff was performing work necessary to the orderly and expeditious carrying on of the interstate commerce of the defendant; that the plaintiff was ordered to carry the drawbar to a railroad car which was being loaded with company material, and that the drawbar which caused the injury was immediately placed upon a car which was being loaded with company material and was sent to Chicago, and that the car had already been designated and ticketed to be sent to Chicago, and that as soon as it was fully loaded it was sent. The undisputed evidence shows that the drawbar in question had been removed from a car, which the court refused to find was an interstate car, on a day previous. During the course of the trial the plaintiff testified that he was engaged in carrying the drawbar in question to a car to be loaded, designed for Chicago. In his complaint the plaintiff alleged that at the time of the injury he was assisting in carrying off iron drawbars from one pile to another in said yards, and this allegation was by the answer admitted. The allegation in the complaint was never withdrawn, and the pleadings therefore presented no issue as to that material fact. Where a material fact is alleged in the complaint and admitted in the answer, it becomes a verity in the case and evidence in respect thereto immaterial to the issues, there being no issue upon that matter. Cutler v. Babcock, 79 Wis. 484, 48 N. W. 494; Denton v. White, 26 Wis. 679; Seymour v. Seymour, 56 Wis. 314, 14 N. W. 371; Wilson v. Groelle, 83 Wis. 530, 53 N. W. 900; Wanzer v. Howland, 10 Wis. 8; Hawkes v. Dodge Co. Mut. Ins. Co. 11 Wis. 188; Tollefson v. Tollefson, 171 Wis. 149, 176 N. W. 879; 31 Cyc. 87, and cases cited in note 64. A party is by such an allegation concluded so long as the pleadings remain unamended.
A jury having been waived and the case tried before the court, and the court having made its findings upon the controverted matter., we may suppose that had an amendment of the complaint been asked it would have been granted. If we treat the complaint as amended, the question then arises whether or not the finding of the court is against the clear preponderance or great weight of the evidence. Tilton v. J. L. Gates L. Co. 140 Wis. 197, 121 N. W. 331; Hintz v. Wald, 138 Wis. 41, 119 N. W. 821. The testimony of the plaintiff given upon the trial, both as to the manner, in which the injuries complained of were received and the nature of the work being performed at the time of the accident, is inconsistent with itself and indefinite and unsatisfactory when taken as a whole. When taken in connection with the solemn admission contained in his pleading and with all the other evidence in the case, including that relating to the surrounding facts and circumstances, the usual, customary, and ordinary methods of transacting the work in which the plaintiff was engaged, we are of the opinion that the finding of the trial court that the plaintiff was engaged in interstate commerce is against the clear preponderance and great weight of the evidence. Lee v. C., St. P., M. & O. R. Co. 101 Wis. 352, 77 N. W. 714.
If it were established that the drawbar was being carried to the car instead of to another pile, there would remain the very serious question as to whether, or not, under the
By the Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint.