Slam v. Lake Superior Terminal & Transfer Railway Co., 140 N.W. 30

Slam v. Lake Superior Terminal & Transfer Railway Co.

140 N.W. 30

Wis.

1913

Check Treatment

WiNsnow, C. J.

"Whilе this is a case which may fairly be said to approach tbe border line, we think it clearly a case which should go to the jury on all propositions.

Touching the question of tbe alleged negligence of tbe defendants, it is to be observed that this is not a case of an ordinary switching yard where all tbe tracks are used for switching purposes, and where men are not expected to be except for the purpose of assisting in the movement of cars, but a case where a track used for loading purposes and about which men must work in the midst of dust and noise is placed next to a track which is used actively for switching purposes ■and for a kind of switching in which the cars move" intermittently without warning and without the presence of a locomotive. It would be reasonable enough to hold as matter of law that in the ordinary switch yаrd where only switching is being done, it could not be justly held that warning of every switching movement must be given, but we do not feel that under the circumstances here present we can say so. Men were here required to labor in a dusty, noisy, and absorbing *430occupation in closed cars on track 3. At intervals they were obliged to come out into the four-foot clearance space between tracks 3 and 4, and with heavy instrumеnts move the loaded car away and put an empty one in its place, and then climb into the empty car and repeat the loading operation. Under these circumstances we think it clearly а question for the jury whether the rules of ordinary care do not require the keeping of a lookout or the giving of a signal when a car is to be moved on track 4, or the giving of a warning to the workmen in advancе that they must look out for such a movement.

We also regard the questions of contributory negligence and assumption of risk as questions for the jury. It is true that the plaintiff had worked nearly all of the time in and about coal docks at Superior for some three years. His testimony, however, tends to show that at the other docks and yards where he worked there was no such situation of danger as there was at the placе in question, i. e. no place where cars were shunted along without attendance, signal, or warning upon a track close to the loading track as was done here. It seems also by his testimony that he had worked on the coal company’s dock only four days before the morning of the accident; that when he went to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍work the first day he loaded one car on the track in question, and was then sent to work in a boаt, where he worked till the end of the second day, and then worked two days dumping coal in another part of the yard; that on the morning of the fifth day he was sent to load coal at 1 o’clock, and loaded four or five cars when his injury took place; that he saw no cars on track 4 the first day and saw no cars moving on that track on the day of his injury until the time that he was hurt, and that he was almost smothered with dust when he camе out of the car and came down the ladder. It is not claimed that any signal was given, that any lookout was on the car, nor that the plaintiff was warned that cars were accustomed to be moved in this way without signal on track 4.

*431In bolding that tbe evidence presents a jury question, in •opposition to tbe conclusion of tbe trial court, we bave not overlooked or forgotten tbe principle that tbe decisiоn of tbe trial court on sucb a question must prevail bere unless it clearly appears from tbe record to bave been erroneous. This principle bas been stated in substantially tbe same terms many times since it was first enunciated in Powell v. Ashland I. & S. Co. 98 Wis. 35, 73 N. W. 573. Among the cases referred to are Dewey v. C., M. & St. P. R. Co. 99 Wis. 455, 75 N. W. 74; Powalske v. Cream City B. Co. 110 Wis. 461, 86 N. W. 153; Nicoud v. Wagner, 106 Wis. 67, 81 N. W. 999; Bohn v. Racine, 119 Wis. 341, 96 N. W. 813; McCune v. Badger, 126 Wis. 186, 105 N. W. 667; Hodge v. Smith, 130 Wis. 326, 110 N. W. 192; Nolan v. Kroening, 130 Wis. 79, 109 N. W. 963; Fleming v. Northern T. P. Mill, 135 Wis. 157, 114 N. W. 841; Clemons v. C., St. P., M. & O. R. Co. 137 Wis. 387, 119 N. W. 102; Fitzpatrick v. Lake Superior T. & T. R. Co. 142 Wis. 65, 124 N. W. 1054; Rogers v. Brown, 143 Wis. 472, 128 N. W. 64; Kroger v. Cumberland F. P. Co. 145 Wis. 433, 130 N. W. 513. Other expressions bave been used to express tbe saíne idea, as, for instance, in Turtenwald v. Wis. Lakes I. & C. Co. 121 Wis. 65, 98 N. W. 948, tbis court said that tbe circumstance that tbe trial court deciding sucb a question bas some advantage over an appellate court “in doubtful cases is entitled to considerable weight upon appeal.” In Maanum v. Madison, 104 Wis. 272, 80 N. W. 591, it is said that tbe decision of tbe trial judge on sucb a question is ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍“entitled to weight, and in doubtful cases to controlling weight.” In Lind v. Uniform S. & P. Co. 140 Wis. 183, 120 N. W. 839, it is said that “considerable reliance must be placed on tbe decision of tbe trial court who beard tbe testimony.” In Agen v. Metropolitan L. Ins. Co. 105 Wis. 217, 80 N. W. 1020, it is said that tbe court should lean toward supporting such- a decision in a case of fair doubt on tbe question. In Meyst v. Freder-*432ickson, 146 Wis. 85, 130 N. W. 960, it is said that the trial judge’s determination on such a question “should be supported here unless manifestly wrong;” and substantially the same words are used in Jeffers v. G. B. & W. R. Co. 148 Wis. 315, 134 N. W. 900. In Larzelere v. Wood, 136 Wis. 541, 117 N. W. 1013, it is said that “deference is due thе judgment of the trial court” on a judgment of nonsuit. See, also, Walsh v. C. & N. W. R. Co. 149 Wis. 119, 135 N. W. 534. It is considered that these cases and perhaps others containing like language were all intended to express and do in fact express thе same general idea, namely, that when the trial judge rules, either on motion for nonsuit, motion for a directed verdict, or motion to set aside the verdict, that there is or is not sufficient evidence upon a givеn question to take the case to the jury, the trial court has such superior advantages for judging of the weight of the testimony and its relevancy-and effect that this court should not disturb the decision merely because, on a doubtful balancing of probabilities, the mind inclines slightly against the decision, but only when the mind is clearly convinced that the conclusion of the trial ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍judge is wrong. It is also considered that this is an entirely reasonable and salutary principle; a principle upon which the court has acted in the past and .expects to act in the future; a principle which gives due weight and dignity to the decision of the trial judge and demands of him his best and most conscientious service whenever such a question is presented. The companion principle is also well understood, namely, that the verdict of a jury will only be set aside by this court whеn there is no evidence in its support, or, if there be some slight evidence in its support, still the great weight of the evidence to the contrary is so strongly reinforced by all reasonable probabilities and infеrences as to be overwhelming. Bannon v. Ins. Co. of N. A. 115 Wis. 250, 91 N. W. 666; Peat v. C., M. & St. P. R. Co. 128 Wis. *43386, 107 N. W. 355; Asserin v. Modern B. of M. 147 Wis. 520, 133 N. W. 579.

These simple principles are restated here, not because the court deems such restatement necessary to remove doubts as to tbeir correctnеss, but simply to lay the proper foundation for some remarks of an explanatory character as to certain other expressions used in other cases which it has been thought by some members of this court might perhaps be interpreted as changing or modifying the principles stated. Reference is here made to a number of cases in which, in discussing the question of the dignity and weight to which the ruling of the trial court before or after verdict upon such a question is entitled, the term “reasonable doubt” or something equivalent thereto is used. Thus, in Lam Yee v. State, 132 Wis. 527, 112 N. W. 425, it was said concerning the decision of the trial court refusing to set aside a verdict of guilty, that it could not be overruled unless it is “not only wrong but clearly so, reasonable doubts in respect thereto being resolved in favor of such decision.” In Szczepanski v. C. & N. W. R. Co. 147 Wis. 180, 132 N. W. 989, it was said concerning the decisions of the trial court on motions to direct a verdict and for judgment after verdict, “they must be wrong and so clearly that way as to leave no reasonable controversy in respect thereto” in order to be reversed hеre. In Barlow v. Foster, 149 Wis. 613, 136 N. W. 822, it is said the verdict of a jury approved by the trial court “is due to prevail unless it appears so radically wrong as to have no reasonable probabilities in its favor after giving legitimate effeсt to the presumption in its favor and the makeweights reasonably presumed to have been rightly afforded below which do not appear, and could not be made to appear of record.” In Koepp v. Nat. E. & S. Co. 151 Wis. 302, 139 N. W. 179, it is sаid of the ruling of the trial court submitting the case to the jury, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍“such a decision must prevail here unless manifestly wrong. Reasonable *434doubts in respect thereto must be resolved in favor of the trial jurisdiction.” And in Sloan v. C., M. & St. P. R. Co. 151 Wis. 645, 139 N. W. 529, it is said, speaking оf the decision of the trial court setting' 'aside a verdict for the plaintiff and granting judgment for the defendant on the evidence, that the decision “is entitled to such weight on appeal as not to be legitimatеly disturbable without a manifest showing of its being wrong. . . . All reasonable doubts arising from the record itself, and those arising from appreciably contemplating the peculiarly advantageous position of the trial judgе, must be overcome in such a case as this in order to successfully challenge the initial decision.”

In regard to these latter expressions and any others of similar nature which may exist in our recent reports, it has been the thought of the writer and some of his brethren that they might easily and perhaps naturally be construed as extending and making more drastic the simple principles first stated in this discussion, because of the use of such expressions as “reasonable controversy,” “reasonable probabilities,” and “reasonable doubts.” These terms — especially the latter — have acquired a very well defined and cеrtain meaning in the criminal law, and it seems probable that when used in this connection they would naturally be thought to carry the same meaning, and thus require this court to be in the same condition of mind in order to reverse such a ruling that a jury is required to be when it convicts a man of crime.

It may be stated authoritatively that there has been no such thought here, and no such principle has been acted on. It was thought by these exрressions to make clear and prominent the simple rule first enunciated in the Powell Case, 98 Wis. 35, 73 N. W. 573, and not to extend it. Elaboration of definition does not always produce clarity of expression, and it may not have done so in this case. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍It is enough for our present purpose to state that the various expressions last quoted and any similar expressions which may be found are *435not to be considered as in any way changing the аttitude of this court towards the decisions of the trial court of the nature herein referred to. ¡When satisfied that such a decision is clearly wrong, we shall feel that it is our duty to so pronounce it; when not so satisfiеd, we shall feel that it is our duty td affirm it. The writer expresses his own personal doubt whether anything in the way of clearness is to be gained by any attempt to state the principle in a different way or enlarge upon it.

By the Court. — Judgment reversed, and action remanded for a new trial.