54 Wis. 433 | Wis. | 1882
It is urged by the learned counsel for the respondent, that “to justify a verdict for-the plaintiff it must appear, from a preponderance of evidence in the case, that the insured building was destroyed by lightning,” and therefore that the nonsuit was properly granted; and in support of the contention several cases are cited. In neither of the three cases cited from the supreme court of the United States was there a peremptory nonsuit, but each was submitted to the jury. Two of the cases were affirmed, and one reversed for instructions in favor of the defendant not warranted by the evidence. In Doe v. Grymes, 1 Pet., 469, not cited, it was held at an early day that “ the courts of the United States have no authority to order a peremptory nonsuit against the will of the plaintiff on the trial of a cause before a jury.” D’Wolf v. Rabaud, 1 Pet., 476. It was probably in pursuance of this rule that Judge Milt.er refused a peremptory nonsuit in Hyde v. Barker, 1 Pin., 305, and Baxter v. Payne, id., 501, criticised by counselx, and each of which was decided by a federal court. A similar rule prevails in several of the states. But in this state we have had a different practice from the first, and the right to a peremptory nonsuit in a proper case is conceded by all. The only difficulty arises in the limitation and application of the rule.
In Barden v. Smith, 7 Wis., 439, it was held that “ it is
In Dodge v. McDonnell, 14 Wis., 553, it was held that “ the court should not nonsuit a plaintiff when there is any evidence, which, by the most favorable construction that could be legitimately given it, would sustain a verdict in his favor.” To the same effect are Colby v. Franklin, 15 Wis., 311; Langhoff v. Railway, 19 Wis., 489.
In Imhoff v. Railroad Co., 22 Wis., 681, Paine, J., said: “ On a motion for a nonsuit the court is bound to give the evidence the most favorable construction for the plaintiff which it will possibly bear.” In support of this he-cites New York and Ohio cases, and quotes aj>prov.ingly this from Judge Ranney: “All that the evidence in any degree tends to prove, must be received as fully proved; every fact that the evidence, and all reasonable inferences from it, conduce to establish, must be taken as fully established.”. Page 684.
In Lawrence University v. Smith, 32 Wis., 592, the question was whether the direction of a verdict for the plaintiff was error, and Dixon, C. J., giving the opinion of the court, said: “The rule is the same as that which obtains where a motion for a nonsuit is made, and where it is held that the court must look at the facts .in the most favorable light for the plaintiff in which the jury would be at liberty to find them, and then be able to say that there is no evidence which would justify a verdict in his favor.”
These statements of the law have been fully sanctioned by this court in the cases of Schomer v. Hekla Fire Ins. Co., 50 Wis., 579; Jucker v. Railway Co., 52 Wis., 150.
In Jones v. Railway Co., 49 Wis., 352, Mr. Justice Taylor said: “If the plaintiff gives any evidence to support his claim, the case must be submitted to the jury, although in the opinion of the trial judge it may be insufficient to sustain a verdict, or the decided weight of evidence is for the defendant. In such
In Townley v. Railway Co., 53 Wis., 626, several English and American authorities were cited to sustain the rule that, “where the standard of the defendant’s duty is a shifting one, and the facts or the inferences to be drawn therefrom are in dispute .or ambiguous, the question of the defendant’s negligence should not be taken from the jury.”
Erom the authorities cited it is manifest that the trial court was not, and this court is not, called upon to weigh and determine the preponderance of evidence. . If a plaintiff has no right to have his cause submitted to the jury unless there is a preponderance of the evidence in his favor, then by parity of reasoning the defendant has no right to l%ve it submitted tó the jury unless there is a preponderance of evidence in his favor. If this is so, then, as the evidence must always preponderate in favor of one party or the other, or else be equally balanced, it would follow that the court would always be justified in taking the case from the jury on the motion of one party or the other, except when the evidence was equally balanced. Such, however, is not the rule. The simple question is, whether the evidence in behalf of the plaintiff, had it remained undisputed, and giving to it the most favorable construction it will legitimately bear, including all reasonablé inferences from it, is sufficient to justify a. verdict in favor of the plaintiff. In other words, is there evidence, when so construed, tending to prove that lightning was an agency in the destruction of the plaintiff’s building, within the meaning of the policy?
We agree with LoRD Ellenbokoügh, C. J., in the case cited, that the policy “ is to be construed according to its sense and meaning, as collected in the first place-from the terms used in it, which terms are themselves to be understood in their plain, ordinary and popular sense,” etc. Robertson v. French, 4 East, 135.
In Babcock v. Ins. Co., 6 Barb., 637, the stipulation in the policy was: “ The company will be liable for fire by lightning.” The question considered on demurrer was, “ whether the destruction of the dwelling house ... by being rent and torn to pieces by lightning, without being burnt or consumed, is a loss covered and insured against by the policy.” The court held that it was not, and gave judgment for the defendant. The ground of the decision is, that “ the terms of the policy exclude the idea that it was intended to cover damage by lightning when there w7as no ignition.” That judgment was affirmed in the court of appeals (S. C., 4 Corns., 316); and while the opinion of that court, as well as the court below, is replete with scriptural, literary and scientific research, showing clearly that there can be no such thing as “fire” without “ ignition,” “ combustion ” or “ bnrning,” yet it affords us but little aid in determining this question of nonsuit. It is, how
The policy before us is a general insurance against lightning, and most certainly covers all known'effects of electricity coming under the general head of lightning. "What, then, is to be understood by the word “ lightning ” in its “ plain, ordinary and popular sense?” Counsel asks whether the mass of mankind look upon a whirlwind as lightning; whether any person, speaking of a house being destroyed by lightning, supposes he is talking about a tornado? A tornado is defined by Webster as “a violent gust of wind, or a tempest, distinguished by a whirling, progressive motion, usually accompanied with severe thxmder, lightning, and torrents of rain, and commonly of short duration and small breadth; a hurricane.” The Imperial and other dictionaries and encyclopedias give substantially the same definition. The same dictionaries tell us that a hurricane is. “ generally accompanied by thunder and lightning, and rain or hail;” and the Imperial Dictionary says that they “ appear to have an electric origin.” The same dictionary says that lightning is “ a sudden discharge of electricity from
Such are the meanings of the words referred to, in their plain, ordinary and popular sense. The general conviction of danger from lightning is attested by the forked wires projecting from the tops of multitudes of buildings throughout the country; not so much from the combustion which sometimes results from an electrical discharge striking an ordinary object, as a tree or a building,- but the disruptive effect which perforates,-tears and shatters. The question recurs, whether we can say from the evidence that lightning was present as an active agency in the destruction of the dwelling-house in question. The evidence is too voluminous to be passed upon in review; but the case is so unique and important in its consequences that we are induced to quote two sentences from the printed case, and a few extracts from the summary of facts in the very able, fair and exhaustive brief of the senior counsel for the respondent, who concedes that “a large amount of electricity, lightning and thunder attended this foree (the tornado) and was a component part of it.” “A few minutes before the
The plaintiff, as a witness, said: “We had a patch of wheat adjoining the house, and the next morning it looked as though it had been seared — as if there had been a heavy frost; the leaves were turned white on the tops; looked as though there had been a heavy frost, and were all killed. I noticed the same effect on the grass and trees; it looked exactly like trees that you have seen that had been struck by lightning; they had a dead look about them, just exactly as when you see a tree that has been struck by lightning. The trees were in full foliage. This was general in the track of the tornado. I noticed this the day afterwards; the day or two afterwards I noticed it particularly. The trees were split up just exactly as you have seen trees that had been struck by lightning; you . can see the fibres all the way through. They were split in various ways, but were split right down, and some of them you could see the bark stripped off, and some partly stripped off. The storm sometimes stripped the bark off entirely; I have seen several that the bark was entirely stripped off, limbs and all.”
The witness Edivine testified: “The vegetation appeared to be burned, and in appearance very much like a frost that had been on the vegetation; that is, the wheat, oats, grass and so forth; also the trees, the foliage was killed. The next day I noticed that the leaves were withered. It splintered the trees entirely up. I noticed the bark stripped off of several trees; stripped entirely off from within two or three feet of the ground up to the very top. I have seen trees that were not
The plaintiff, John Spensley, testified: “There was a large white-oak tree near my house; there were two limbs on it forking off each way, and it struck right vertically where the limbs connected with the tree and split right down. One part of the tree is gone entirely; the other part is standing there yet. It was split to perhaps two or three feet of the surface. I should think the tree was eight or ten inches through; I should think the split portion was six or seven feet long. It was probably forty or fifty feet from the house.”
The witness Wasiey testified: “Plaintiff had a field of wliea!t just on the south side of the building, within ten or fifteen feet; it was just as yellow as though there had been a heavy frost. The foliage of the trees was all shriveled up; lost their green color .right away the next day.”
John Lanyon testified: “I noticed-the effect of the tornado within an hour after it passed over John Spensley’s house. Some trees had been broken and shattered, and were blackened from some cause that I do not know, but had the appearance of some that I have seen that had been struck by lightning: Next morning I noticed the appearance of the leaves of the trees near Spensley’s house; they were blackened and curled up. I could then trace the track of the tornado by the discoloration of the leaves.”
B. TIarker testified: “The leaves all through the track of the tornado seemed to be curled up and burnt. I lived on high land, and within a few days after the tornado I could trace the track of the tornado for one and one-half to two miles west, by the color of the leaves being burnt brown and the leaves being green before, and the leaves on each side of the tornado being then green. I saw several trees on each side of Spensley’s house, that were slivered and split up as jf struck by lightning.”
Colon Goldsworthy testified: “Could distinguish the track
The plaintiff, as a witness, testified: “I saw constant flashes of lightning; they came and went away. There was a continuous roar of thunder; sometimes loud and then not quite as loud. The flashes of lightning seemed to be very near the earth. I remember distinctly one flash. I never saw anything like it in my life. It took my eyesight, I should think, for two or three seconds. I could not see; it-was so dazzling.”
John Addington, a witness, testified: “When I was in the garden, there came such a flash of lightning that it scared me, so that I dared not stop there. That came from the west. It struck perpendicular. I saw the lightning, and it struck down as though it was going to strike the earth right up, and scared me so I darsent stop. Then in about 'a minute or two there was another such flash came out of the south. When I got into the wood-shed I sat down on a log of wood, and the lightning came so I thought the wood-shed would be afire every minute. . . . When I had sat there a little while, there came snch a flash of lightning as I never saw in my life — never. And when the flash came, the wood-shed was gone like that [indicating] — just as quick as that. I fell down, and it took my hat off as I fell; took my hat right away. I looked up, and the top of the wood-shed was gone; all smashed up; gone right away. The wood-shed was struck on the north side. There was four cords of wood laid against that side, and it just lifted the four cords of wood and the sill and all about half a yard'towards me; and the other side, it lifted that about half
Edmund Edivine, at the time of the storm, was at plaintiff’s furnace, one-quarter of a mile from his house, which was on much higher ground than the furnace, southeast from it, and in plain view. Tie saw the storm approaching from the west, some miles distant. ITe says: “My attention was particularly attracted to it [the storm] by the flashes of lightning. I saw it when it was very small. There was a cloud on either side, and this one appeared to be coming up in the center of the storm. These others on either side came in contact and appeared then to make a whirling motion right there, as it rolled nearer. I supposed, from the continuous lightning that was flashing from it, that it was something unusual; it must be a cyclone or a tornado, or something of that nature. As it drew near I observed in the center of this cloud a fiery, luminous •light. I supposed it was a lire, something like a head-light on a locomotive, and issuing from that flashes of lightning — continued lightning. It was near the earth. As it drew near the light was more brilliant; could see plainer. Could see the light in the center. It rushed right by, and the house was gone in an instant. I saw the storm when it struck the house. I could see the light from behind; flashes of lightning continually — -a continuous roar of thunder with it. At the time the storm struck the house, it was in a funnel shape. The lightning was like fire; just like fire light. There was a light illumination when it struck the house; lightning flashing in every direction continually, and a continuous roar of thunder. Noticed just before it came up to the house a ball of fire came right down, and tore up some ground close by the house, between the furnace and the house. The storm, after it passed the house, continued in the same way.”
Edward Addington, in his deposition, says: “When the
Anna E. Bennett says: “ I could see John Spensley's house from my place. I saw the tornado coming towards my house from the direction of John Spenseley's house. It was like a rolling cloud of smoke as it came to my.house. The appearance o.f the tornado was that of fire and smoke, and I smelt the smell of sulphur, and I saw the fire, and it was bright, and it was all around. This was about four o’clock in the afternoon. Our house was completely demolished. The time that I saw the fire lasted less than two minutes; the effects of the tornado did not last any longer than I §aw the fire. The fire affected my person at that time. I was burned on the side of my neck, and the back of my head. My hair was burned on one side of my head. I had a very sore spot from the effects of the burn. I do not know of any other cause except the heat that was .in the tornado. There was no fire in the house at the time. The fire I saw in the house that day was what w'e commonly call lightning.”
The plaintiff, as a witness, in speaking of the demolition of the house and deposition of the debris, says: “There was not •anything left of the house except the foundation walls,, and they were partly thrown in; the house was completely destroyed; there weré a great many timbers that were just mashed right up into -splinters; seemed as if they had been •rubbed together almost, and broken-to splinters; the timbers were scattered all over; one of the main sills I should t.hinlc was carried a hundred yards- — a piece of timber 8x8,— and was driven nine feet into the ground, and then broken off in
The witness Edivine says: “Everything was shattered ,to pieces — to splinters. The rubbish was scattered over frdm 150 to 200 yards of ground, probably — right there. Then, of course, there were parts of the house at a great distance.” The witness Wasley says: “The debris from the house was considerably shattered; I don’t think you could find twenty-five feet of siding; all split and broken small into kindling wood.”
The witness Mrs. eCoates, who wa3 in the cellar of the plaintiff’s house at the time it was demolished, in describing what occurred immediately after, says in her deposition: “I went into the next room, and smelt the fire and saw the smoke. The cellar was divided into three parts; when the tornado passed we were in the southivest room; we then went into the north part of the cellar, and it was then that I saw the fire and smelt the smoke; and the fire was in the southeast part, which is the vegetable cellar. I supposed my mother was in the ruins and would be burned up, and I called upon Mr. Ad-dington to put out the fire. I saw the fire in the cellar myself; I could not say what it was that was burning; it was a pile of something that had blown there and had caught fire.”
The witness ’Wasleyjays: “ I was a.t the house about fifteen or twenty minutes after the storm passed; the house was entirely destroyed; I saw fire in the debris of the house. It was in the basement under the main part of the house. The cellar under the main part was divided into three apartments.
The witness Edivine says: “At the time, I noticed the smell of sulphur at the house. When I went there first, it was quite powerful; then it kind of' diminished.”
The plaintiff’s mother-in-law, Mrs. Walker, was in his house at the time of the fire, and was killed; and the evidence tends to show ■ that one side of her face was burned, and the other side was bruised and cut, and the hair on one side of her head was burned off close to her head.
Following the rule of law indicated, and giving to the testimony the most favprable construction it will fairly bear, and deeming, for the purposes of this appeal, everything as fully proved which the evidence in behalf of the plaintiff tends to prove, and assuming to be established- every fact which such testimony, and all reasonable inferences from it, conduce to establish, can we say there was no evidence which, if undisputed, would justify a verdict for the plaintiff? Applying that rule, can we say that the condition of the atmosphere immediately before and after the destruction; the hail and the fain; the seared condition of all. vegetation about the building; the rending of the oak tree a few feet from the house; the bolt qf lightning striking close on the other side; the ball of fire like
It is certainly common in patent cases to submit the ques-
The majority of the court being of the opinion that there is such evidence, the judgment of the circuit court is reversed, and the cause is remanded for a new trial.