118 Wis. 614 | Wis. | 1903
It appears that the plaintiff got onto the defendant’s street car while standing on Main street, opposite the Menasha Bank, in the city of Menasha, August 6, 1899. The track at that point ran in a northeasterly and
1. It is claimed that the case should have been taken from the jury for the reason that the evidence is insufficient to sustain a finding of negligence on the part of the defendant. Negligence is not a conclusion to be testified to by witnesses, but an inference to be deduced from the facts and circumstances disclosed by the evidence. Kaples v. Orth, 61 Wis. 533, 21 N. W. 633. Negligence is “an inference to be deduced 'from the facts and circumstances disclosed by the evidence. . . . When such facts and circumstances, though undisputed, are ambiguous, and of such a nature that reasonable men, unaffected by bias or prejudice, may disagree as to the inference or conclusion to be drawn from them, then the case should be submitted to the jury.” Id.; McDougall v. Ashland S. F. Co. 97 Wis. 392, 73 N. W. 327. Of course, in support of the verdict in favor of the plaintiff, on this appeal, we are required to consider the evidence in his behalf in the most favoi’able light it will legitimately bear. Nelson v. Shaw, 102 Wis. 277, 78 N. W. 417; Renne v. U. S. Leather Co. 107 Wis. 320, 83 N. W. 473. In the case at bar the plaintiff testified to the effect that when he got onto the car it was full; that he at first stood on the lower step, and then on the upper step or platform, and held himself to the iron railing — the brass railing — on the back end, at the window, close to the door; that the car was overcrowded; that when the conductor came around and collected fare he put his hand in. his side pocket and took out the money to pay his fare; that when he got at the curve the twist and fast driving around the curve threw him off and injured him; that his pocketbook was not fastened, and a part of the contents went on the ground and a part on the car. Other witnesses testified in his behalf, among other things, to the effect that' the plaintiff
Viewing such testimony in the most favorable light for the plaintiff it will legitimately bear, and we are unable to say, as a matter of law, that the finding of the jury that the injury to the plaintiff was caused by the negligence of the defendant is not sustained by evidence. The same is true as to finding of the jury as to the absence of any contributory negligence on the part of the plaintiff.
2. Error is assigned because-the court did not submit to the jury the thirteen questions requested by the defendant. Such questions were mostly of an evidentiary character, the determination of which would settle nothing except the existence or nonexistence of certain items of evidence. This
But counsel insists that the court improperly refused to submit certain “particular physical facts directly put in issue by the pleadings,” and relies in support of such contention upon Lee v. C., St. P., M. & O. R. GCo. 101 Wis. 352, 77 N. W. 714. In that ease the only evidence in support of the verdict was the testimony of the plaintiff himself, and that was contradictory and in direct conflict with the testimony of a large number of other witnesses, and the determination of the physical facts put in issue by the pleadings was essential to determine the truth of the transaction; and so it was in effect held that, under the circumstances of the case, it was an abuse of the discretion vested in the trial court not to submit such questions to the jury. See pages 355, 356, 362, 101 Wis., pages 715, 717, 77 N. W. In following that case it has since been said by this court:
“The form of the questions must rest largely in the discretion of the trial court, and, as in other cases of discretionary action, the ruling of the court below will not be reversed, save for abuse of such discretion.” Ward v. C., M. & St. P. R. Co. 102 Wis. 221, 78 N. W. 442. See, also, Baxter v. C. & N. W. R. Co. 104 Wis. 315, 80 N. W. 644; Sladky v. Marinette L. Co. 107 Wis. 257, 83 N. W. 514.
Particular objection is made because the court did not in form, as requested, submit to the jury the question whether the car was going at an unreasonable and dangerous rate of speed when the plaintiff fell off. The question was substantially covered, and almost in the language requested, in charging the jury under the second question submitted, and it was
3. Error is assigned because the court, at the request of the plaintiff, charged the jury on the question of contributory negligence as follows:
“If you should find from the evidence that this car was crowded, and that the plaintiff was required to stand upon the platform, he was entitled to just as much care for his safety as though the car was not crowded, and in riding upon the platform he assumed the inconvenience resulting from the crowded condition, but did not assume any increased risk."
This is sought to be justified by what was said by this court in Ward v. C., M. & St. P. R. Co. 102 Wis. 220, 221, 78 N. W. 442. But it will be observed that the refusal to give the instruction there requested was justified on the sole ground that the instruction was capable of being construed as stating “that a passenger on an excursion train is not entitled, as a matter of law, to expect just as much care to be exercised for his safety as a passenger upon a regular train.” True, the court then said:
“Doubtless a passenger, when he rides upon a crowded train, assumes the inconveniences resulting from its crowded condition, but he cannot- properly be said to assume any increased risk; nor can the company be held to any less degree of care from the mere fact that the train is crowded, or the fact that it is an excursion train, and not a regular train.”
4. In charging the jury upon the question of proximate cause, they were told that, in order to answer the question in the affirmative, they must “find from the testimony that the circumstances and conditions were such that the defendant ought to have known that its conduct might produce the injury which the plaintiff sustained, or to anybody else standing in the same relation he did.” Counsel contends that' this was vague, uncertain, and calculated to confuse the jury. We must concur in this contention. The rule on the subject has been considered so often as not to require repetition. Sheridan v. Bigelow, 93 Wis. 426, 67 N. W. 732; Andrews v. C., M. & St. P. R. Co. 96 Wis. 348, 357, 71 N. W. 372; Deisenrieter v. Kraus-Merkel M. Co. 97 Wis. 279, 72 N. W. 735; McFarlane v. Sullivan, 99 Wis. 361, 364, 74 N. W.
Other questions raised are not regarded of sufficient consequence to call for discussion.
By the Court. — The judgment of the circuit court is reversed, and the cause is remanded for a new trial.