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

| Wis. | Jan 15, 1879

Oetost, J.

This cause seems to have been very fully and ably tried, and the special findings of the jury cover all the material facts, and are consistent with their general verdict for the plaintiff, and there is no such preponderance of proof against them as would warrant this court in finding adversely to the jury on any material question of fact.

The special instructions asked by the respondent were given substantially in the general charge, and it was not error to refuse to give them in this special manner, although they were correct in principle and applicable to tbe case, if they were so given substantially in the general charge. Karasich v. Hasbrouck et al., 28 Wis., 569" court="Wis." date_filed="1871-06-15" href="https://app.midpage.ai/document/karasich-v-hasbrouck-6600765?utm_source=webapp" opinion_id="6600765">28 Wis., 569.

On the question whether any signal was given by the defendant, by blowing the whistle on the train approaching the crossing when the accident occurred, it is true, as a rule, that negative testimony, or the testimony of witnesses in the vicinity that they did not hear the whistle at that time and place, is not as conclusive as the testimony of the same number of witnesses that they did hear it; but this rule may be greatly modified in a given case, by circumstances — the character and interest of the witnesses, their means of knowledge and manner of testifying, and other matters forming the test of credibility, which the jury are presumed to have considered; and this court might do great injustice by applying this rule as an inflexible one, without these tests of credibility, and without reference to modifying circumstances.

In this case, the situation of the witnesses near the crossing, in full view of the advancing train, with their attention specially directed to the train, and to the signal or want of signal by blowing the whistle, might make their testimony as conclusive that such signal was not given, as the testimony of the same number of witnesses, whose situation and circumstances were less favorable to positive knowledge, that it was so given.

In respect to the testimony of Otto Botmer, detailing the circumstances of his own attempted crossing of the railroad at the same place when a train, was approaching, about a week after this occurrence, that which was objectionable was not responsive to any question asked by the counsel of the plaintiff, and it is very likely that the court would have excluded it from the consideration of the jury upon request; but no such request was made, and it is now nominally in the case, not by the error of the court, for the court did not act, and was not called upon to act, upon the question; and not by the fault of the plaintiff, for he did not ask for such testimony; but by the neglect of the defendant in not ashing for its exclusion. The witness had been asked to “ state the circumstances,” and the defendant’s objection to the question had been sustained by the court, and then the witness stated the circumstances improperly and of his own accord, while answering questions which, though objected to, were clearly proper, but which did not call for any such objectionable evidence.

The jury were substantially informed by the ruling of the court upon the question, that these circumstances were improper evidence, and that they should not he considered by them; and it is not to be presumed that this evidence so given had any weight with the jury.

Objection is taken to the special finding, or want of finding, of the jury, in response to the questions, “ Could the plaintiff have heard the whistle? ” “ If he had stopped his team, etc., could he have heard the whistle? ” The answer is, “ He might or might not.”

It requires no argument to show that it was impossible for the jury to give direct and positive answers to these questions. The most the jury could do, would be to give their opinion, and their opinion was not asked. The plaintiff’s physical ability to hear the sound of the whistle from the place he occupied, depended upon many facts and conditions, and these facts and conditions would have been the proper subjects of their finding if they had been proved; but an opinion founded upon no proof of all the facts and conditions required for the basis of any opinion, would be of no value; and if founded upon all such facts and conditions when actually proved or known, it is a mere opinion at best, and nofl such yací as could be the subject of a special finding.

The answer of the jury was, substantially, that they did not know whether the plaintiff could have heard the sound of the whistle, situated as he was at the time, and under all the possible circumstances of his situation. The answer is not evasive, so much as an expression of inability to answer the question at all.

Objection to such a question, ashing for an impossible answer, would have been more tenable.

Exception is taken to permitting the jury to amend their verdict. It is not error to allow the jury to again retire to consider and perfect their verdict. Hugh v. Johnson, 18 Win., 72.

Some other exceptions appear in the record, but of no substantial importance as affecting the result, and which were not pressed on the argument.

By the Court. — The judgment of the circuit courtis affirmed, with costs.