Spencer v. Chicago, Milwaukee & St. Paul Railway Co.

105 Wis. 311 | Wis. | 1900

Winslow, J.

It seems entirely plain that the impression of the witness Young that the train was passing a structure of some kind at the time the water came in the car was, at best, a mere conjecture, and that his further idea that such structure might have been a water tank was. a conjecture founded upon a conjecture. Yerdicts must be founded upon evidence which convinces the mind. They cannot rest on mere speculation, guess, or conjecture. Hyer v. Janesville, 101 Wis. 371. While some of the earlier cases approved the doctrine that the mere happening of an accident on a railway raised a presumption of negligence in favor of the passenger, this doctrine is now abandoned, and it is quite universally held that the evidence must go further, and tend in some tangible way to show that the accident resulted from something connected with the operation of the railway. 2 Fetter, Carriers of Passengers, § 480; Buswell, Personal Injuries (2d ed.), 184; 2 Shearm. & Redf. Neg. (5th ed.), § 516. Thus the mere unexplained fact that a missile entered the car and injured the passenger is insufficient. Saunders v. C. & N. W. R. Co. 6 S. Dak. 40; Thomas v. P. & R. R. Co. 148 Pa. St. 180. So we must hold in the present case that the mere unexplained fact that a stream of water entered the window of the car is not sufficient evidence to raise a presumption of negligence on the part of the railway company.

Error is alleged because of certain rulings on evidence. A witness was called who worked for the defendant at the Wadsworth station at and prior to the time of the accident, and the question was asked him whether he knew of the water escaping from the north tank at Wadsworth at any time when the valve was not intentionally pulled. An objection to this question as incompetent, immaterial, and indefinite as to time was sustained. This ruling was right for two reasons: (1) because there was no sufficient evidence to justify a finding that the water came into the car at or near Wadsworth; and (2) because none of the questions fixed the time of such unintentional flow of water at or prior to the time of the accident.

By the Court.— Judgment affirmed.