Duncan v. Western Union Telegraph Co.

Wisconsin Supreme Court

Duncan v. Western Union Telegraph Co.

58 N.W. 75, 87 Wis. 173, 1894 Wisc. LEXIS 137

CourtWisconsin Supreme Court

DecidedFebruary 23, 1894

StatusPublished

Cited by6 cases

This text of 58 N.W. 75 (Duncan v. Western Union Telegraph Co.) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Duncan v. Western Union Telegraph Co., 58 N.W. 75, 87 Wis. 173, 1894 Wisc. LEXIS 137 (Wis. 1894).

Pincite

Opinion

Pinney, J.

The evidence in this case was not sufficient to warrant the submission of the issue to the jurjr, and the motion for a nonsuit ought to have been granted. The witness Wicker testified that when he saw the horse he thought he could not save it; that the disease had gone too far. lie had no means of knowing whether it was an ordinary case of pneumonia at the time, in the morning of the 5th, when it is said a veterinary surgeon could have reached Westboro from Eau Claire, had the plaintiff’s message been correctly transmitted. Any opinion given by him in that respect, as well as to whether the horse could have then been saved by treatment, was the merest guess or conjecture, -without any statement of fact's to support or justify it. It is true, he testified that he did not see anything extraordinary in this case from the usual run of cases he had treated. This, to say the least, is singular, in view of his former statement in substance that when he saw the horse it was his opinion that the disease had gone so far that the horse could not be saved. Perhaps he meant that he did not see anything extraordinary in the case, as one that had progressed so far as this one had. However this may be, admitting that a veterinarian would have had a better chance to save the horse if he had been there at [177]*1774 o’clock in the morning than at 5 o’clock in the afternoon, when Wicker came, still, it was but a ohanoe. There was ho competent evidence to show that, at 4 o’clock in the morning, the case was an ordinary case of pneumonia. The most that can be said is that the evidence wholly fails to prove the issue, and affords a foundation only for the merest guess or conjecture, and the jury were left to guess or conjecture at a result which the law requires should have been fairly established by competent evidence. Marvin v. C., M. & St. P. R. Co. 79 Wis. 140; Megow v. C., M. & St. P. R. Co. 86 Wis. 466. This was error.

Ry the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.

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Pinney, J.

The evidence in this case was not sufficient to warrant the submission of the issue to the jurjr, and the motion for a nonsuit ought to have been granted. The witness Wicker testified that when he saw the horse he thought he could not save it; that the disease had gone too far. lie had no means of knowing whether it was an ordinary case of pneumonia at the time, in the morning of the 5th, when it is said a veterinary surgeon could have reached Westboro from Eau Claire, had the plaintiff’s message been correctly transmitted. Any opinion given by him in that respect, as well as to whether the horse could have then been saved by treatment, was the merest guess or conjecture, -without any statement of fact's to support or justify it. It is true, he testified that he did not see anything extraordinary in this case from the usual run of cases he had treated. This, to say the least, is singular, in view of his former statement in substance that when he saw the horse it was his opinion that the disease had gone so far that the horse could not be saved. Perhaps he meant that he did not see anything extraordinary in the case, as one that had progressed so far as this one had. However this may be, admitting that a veterinarian would have had a better chance to save the horse if he had been there at [177]*1774 o’clock in the morning than at 5 o’clock in the afternoon, when Wicker came, still, it was but a ohanoe. There was ho competent evidence to show that, at 4 o’clock in the morning, the case was an ordinary case of pneumonia. The most that can be said is that the evidence wholly fails to prove the issue, and affords a foundation only for the merest guess or conjecture, and the jury were left to guess or conjecture at a result which the law requires should have been fairly established by competent evidence. Marvin v. C., M. & St. P. R. Co. 79 Wis. 140; Megow v. C., M. & St. P. R. Co. 86 Wis. 466. This was error.

Ry the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.

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Bluebook (online)

58 N.W. 75, 87 Wis. 173, 1894 Wisc. LEXIS 137, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duncan-v-western-union-telegraph-co-wis-1894.

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