85 Wis. 601 | Wis. | 1893
The following are substantially the facts of this case, according to the testimony: The village of Fall Creek, in the county of Eau Claire, has about 500 inhabitants, and one main street running east and west, very much traveled. The defendant’s railway runs through the vil
It is claimed by the learned counsel of the appellant that the plaintiff was intoxicated, notwithstanding the verdict of the jury otherwise. In view of the facts, this question does not seem to be material. It is only material as affect
The jury found a special verdict that the defendant was negligent, in that its servant failed to stop the car, and that such negligence was the proximate cause of the injury; that the conductor in charge of the car did not use due diligence to warn the plaintiff of his danger, and could have stopped the car in time to have prevented the collision, by applying the brakes after he discovered the plaintiff approaching the track; that the plaintiff was not guilty of any want of ordinary care which contributed to the injury, and that he was not intoxicated immediately prior to the accident, or incapable of managing and conducting himself with ordinary care. The jury found the plaintiff’s damages at $1,700, and the court rendered judgment accordingly. The errors assigned will be disposed of in their order.
■ 1. The court ought to have granted a nonsuit, or directed a verdict for the defendant, or granted, a new trial. On the merits of the cáse involved in these motions but little need be said. This is a very plain case. There is nothing in the conduct of the plaintiff that suggests even a suspicion of the want of ordinary care. The question of his being in
2. The court charged the jury to the effect that making this “flying switch” over a street crossing “was a most dangerous proceeding;” and “that it was the duty of the defendant to have taken special pains to give the public full warning of the danger;” and that it was the duty of the conductor to see persons approaching the crossing, unaware of the danger, and give them sufficient warning. Special exception is taken to the language, “ á most dangerous proceeding,” “special pains,” and “full warning.” If it was a “ most dangerous proceeding,” then it follows, of course, that “ special pains ” should be taken to give the public “full warning.” The learned counsel of the appellant, in stating the principle of certain cases cited and claimed to be against the above instruction, uses the following language : “ It is not negligent to push, back, or switch cars over a crossing, even though the cars be ‘ kicked,’ or a ‘ flying switch ’ be made, if precautions to prevent injury to
3. The refusal of the court to give the instructions asked
4. The questions submitted to the jury were also ample and sufficient to embrace all the material issues, and the refusal to submit those presented by the defendant’s counsel was not error.
5. The court refused to strike out the testimony of the witness Shaun, in respect to the speed of the train. This witness was twenty years of age, and had lived with his father about thirty rods from the upper switch, in this village many years, and had seen a great many trains pass by, and he gave an opinion as to the speed of this train that it was about twenty-five miles per hour. On cross-examination he said he did not know how many feet or rods there were in a mile. It was objected that this showed him incompetent to testify on that question. It is a mere matter of opinion how many miles ap hour a train is running, with the best of witnesses. It is not a matter of expert evidence or of science. Detroit & M. R. Co. v. Van Steinburg, 17 Mich. 104. The opinion of some witnesses would be more reliable than that of others. It would depend upon their intelligence and experience. It does not follow that a witness may not be able to form a reasonably intelligent opinion of the distance or .space of a mile if he cannot readily know or tell how many feet or rods there are in a mile. He may be able to form an opinion of what is a foot in length, height, or depth, or of what is a rod or a mile. A knowledge of these main spaces is acquired by observation and practical test, while their minute subdivisions depend much upon the tables to be learned and remembered. The weight to be given to the opinion of any witness will depend upon his general intelligence, learning, and experience. But the opinion of one who ranks below the common standard is not to be stricken out as incompetent. The jury should be allowed to give it its proper
6. The first question put to the witness Roedel, and objected to, was immaterial; and the question as to the distance in which such a car, with a sound brake, could be stopped was clearly competent, relevant, and material. The order in which the testimony may be introduced is in the discretion of the court. Remlinger v. Young, 22 Wis. 426.
There do not appear to have been any good reasons for the court to grant the motion for a new trial. The evidence seems to have fully warranted the verdict, and the damages awarded appear to be reasonable and proportionate to the plaintiff’s injury.
By the Court.— The judgment of the circuit court is* affirmed.