183 Wis. 85 | Wis. | 1924
The question at 'issue in this case is whether or not the defendant, Weber, negligently drove his car to the westerly side of the center of the highway in violation of the statute, so causing the accident. Inasmuch as there must be a new trial, we shall withhold' comment upon the evidence; suffice it to say that there is evidence sufficient to take the case to the , jury.
At or about the time the Hall car met the Weber car, Hall exclaimed to his wife and his mother-in-law, who were in his car, “My God, he will hit Tony, sure,” Tony being Mr. Schmirler, the driver of the car .which overturned. Hall was permitted to testify to this, as was Mary Calkins, his mother-in-law, and his wife, Mrs. P'earl Hall. The admission of this testimony is assigned as error and Shiefel v.
Wisconsin has a very liberal rule in regard to the. admission of spontaneous exclamations made by actors and bystanders under such circumstances as to make them a part of the res gestee, and we are not disposed to restrict it. The Shiefel Case is not in point. There the exclamation was made after the witness had traveled something like half a mile with ample time for reflection. Its utterance was not so closely connected with the assault as to malee it a part of the transaction. In this case the exclamation was spontaneous, without opportunity for reflection and within three or four seconds of the happening of the accident. While the declarant was removed in distance some two or three hundred feet, in time the occurrences were almost concurrent. We -think within the rule the evidence was clearly admissible. Reed v. Madison, 85 Wis. 667, 56 N. W. 182; 2 Jones, Evidence, §§ 346, 347.
The rule applies where the exclamation is by a bystander. 3 Wigmore, Evidence (2d ed.) § 1755, and cases cited.
An instructi'ón.given by the court is assigned as error by the defendant. The circumstances were such as to make the inference that the, driver of one of the cars was negligent almost irresistible. There was no confusion. The lights upon both cars were lighted. The highway was unobstructed, with a broad smooth surface, and there is nothing but the fact of negligent driving to account for the accident. It is the claim of the State that the defendant was driving on the wrong side of the center of the highway, while'it is the claim of the defendant that Schmirler was driving at an excessive rate of speed. In that situation the court instructed the jury as follows:
“The defense is seeking to show here that the death was due to-negligence on the part of Anton Schmirler,. in whose car Mrs. Meggers was riding, and that it was not due to negligence of this defendant. The issue which you are to*89 try here is the guilt or innocence of this defendant, and not, directly at least, the guilt or innocence of Mr. Schmir-ler, that is to say, Schmirler is not on trial here. But in seeking to establish his own innocence, this defendant has a lawful right -to prove and to satisfy you if he can do so, that the culpable negligence which produced the death was not his culpable negligence, but zvas the negligence of Mr. Schmirler or any other person. If the evidence satisfies you that such zvas the fact, that is, that it zvas not his negligence, you should then find the defendant not guilty, notwithstanding that you cannot in this action return a verdict of guilty against any other person.”
That part of the instruction which is italicised is clearly erroneous.
The court also gave proper instructions in regard to the burden of proof and as to reasonable doubt, and it is contended that taken together the instruction, which is admittedly erroneous, cannot be considered prejudicial. There was a clear conflict in the evidence, and the case is one not free from doubt. The instruction of the court to the effect that the jury might acquit the defendant if the evidence satisfied it that it was not his negligence, places an unwarrantable burden upon the defendant. The evidence offered by the defendant was sufficient to warrant an acquittal if it aroused in the minds of the jury reasonable doubt as to the guilt of the defendant, and it was not necessary that it should satisfy it that it was not his negligence which caused the death of Mrs. Meggers. It is therefore considered that the giving of this instruction was prejudicial to the defendant and that the judgment of the circuit court must be reversed.
By the Court. — The judgment of the circuit court is reversed, and cause remanded for a new trial.
