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

107 N.W. 355, 128 Wis. 86, 1906 Wisc. LEXIS 243

• Court: Wisconsin Supreme Court
• Decided: April 17, 1906
• Status: Published

Opinions

'The following opinion was filed April 17, 1906:

Dodge, J.

Appellant’s principal contention is that the •court erred in overruling the motion for new trial, which counsel primarily supports by assertion that the evidence so ■overwhelmingly preponderates against plaintiff that refusal to set aside the verdict on that ground was an abuse of discretion. This position is wholly untenable if there was any credible evidence to sustain plaintiff’s contention as to the material facts. In such case, while the trial court has authority in its discretion to set aside the decision of the jury as likely in his judgment to work injustice, this court will not reverse •a refusal so to do. Flaherty v. Harrison, 98 Wis. 559, 562, 74 N. W. 360; Collins v. Janesville, 117 Wis. 415, 424, 94 N. W. 309. Eone of the cases cited by appellant’s counsel antagonize this rule, though he seems to think his attitude supported by a quotation from Wunderlich v. Palatine F. Ins. Co. 104 Wis. 382, 387, 80 N. W. 467, to the effect that this court will reverse wben it appears that tbe verdict is against the great weight of the evidence, and that supporting it is impeached or rendered improbable by conceded facts and all-reasonable inferences. We pointed out in Bannon v. Ins. Co. of N. A. 115 Wis. 250, 256, 91 N. W. 666, that this rule requires not only that the great weight of evidence should be opposed to the verdict, but also that the so-called evidence seeming to support it should appear to be incredible as inconsistent with fully established facts or» the known natural course of events. The meaning of the expression “against all reasonable probabilities,” as rendering testimony incredible, was further explained in Bourda v. Jones, 110 Wis. 52, 60, 85 N. W. 671, 674, as follows: “A sworn statement which is obviously false in the light of reason and common sense and facts within common knowledge is not to be received in court as true because some witness wilfully or ignorantly or recklessly so testifiesand again in Beyer v. St. Paul F. & M. Ins. Co. 112 Wis. 138, 88 N. W. 57: “Testimony may be so in conflict with conceded and established physical facts as to be incredible for the reason that its truth is morally impossible or so improbable in the course of nature as to approximate impossibility.”

When, however, any fact essential to a verdict is supported only by evidence thus rendered incredible, the setting aside such verdict is no longer discretionary with the trial court but a duty, failure of which is error reviewable on appeal. Flaherty v. Harrison, supra; Cawley v. La Crosse C. R. Co. 101 Wis. 145, 150, 77 N. W. 179; O’Brien v. C., St. P., M. & O. R. Co. 102 Wis. 628, 78 N. W. 1084; Musbach v. Wis. C. Co. 108 Wis. 57, 68, 84 N. W. 36; Bourda v. Jones, supra; Ellis v. C., M. & St. P. R. Co. 120 Wis. 645, 98 N. W. 942. In the light of this rule and the authorities we proceed to examine the evidence.

The only elements of fact upon which the evidence can be considered at all in conflict, except by the testimony of plaintiff himself, are as to whether he was ejected from the train-three quarters of a mile north of Hixon or at the station, and whether, at the time of his ejection, the train was moving or stationary. Upon both these subjects the conflict is between witnesses, and while the testimony for the defendant is in a very high degree more certain and probable than that offered for the plaintiff, we shall not deem it necessary to declare the latter incredible. The crucial question is not just where plaintiff was ejected, nor whether he was ejected while the-' train was in motion, but whether his foot was severed at that time. Upon this question we are convinced that physical facts, and facts so impossible of mistake as to the operation of the railroad, and so undisputed by anything except plaintiff’s own testimony that they must be taken as true, render-incredible plaintiff’s story as to that fact, either in connection Avith the details to which he testifies or with any other conceivable state of facts. It is established beyond controversy that he left the passenger train at a point, either 700 or 800 feet according to defendant’s witnesses, or more than three-quarters of a mile according to plaintiff, north of the place where, according to the testimony of the train hands who picked him up, he was found Avith his foot severed and bleeding. As to whether the place at which he was picked up is established, we can have no doubt. He locates it at a point considerably north of Hixon. In order that this should be-true we must disbelieve that train No. 94 passed over the track southward, as testified by its various train hands and by the train hands of the north-bound logging train. A mistake in this regard by this crowd of witnesses vdth reference to such business is not credible. Secondly, we must ignore the-physical fact that the only blood stains on the suoav were south of Hixon and not north of it. And thirdly, we must disbelieve the testimony of all the train hands of the north-bound logging train as to the operation of that train and the place where they found this injured and bleeding man. A more-■cogent and complete case of physical and established facts in■consistent with the testimony of the plaintiff as to the place where he was picked np can hardly be conceived.

Blit almost equally conclusive are the facts against the theory that he could have received the injury which he suffered, at any other place than near where he was found. Even if we concede it possible that a man with a severed foot may, at the end of two hours, with no precautions against the hemorrhage, be conscious, even if alive, we still have the fact that all his movements which are disclosed by any evidence ■except his own are traced ujoon the snow by his blood, and that those movements are consistent with the fact that up to •the time the north-bound logging train approached him and he was seen 500 or 600 feet south of the south switch at Hixon on the track he had not received this injury. Between that point and the place of ejection from the passenger train the snow was absolutely free from those marks which he must have left had he passed over it with the injured foot. Of course, as plaintiff contends, there is the other physical fact that his foot was in fact injured in some way and, doubtless, by a railroad train. The evidence shows a situation in which such an injury is entirely within reasonable probabilities, wholly consistent with the known facts, except perhaps plaintiff’s own story. He was seen immediately in front •of an approaching train. He had been ejected at a lonely and almost uninhabited spot, and was, of course, anxious to 'find transportation therefrom. It is entirely within the probabilities that, as this train slowly approached to enter the switch, he attempted to board one of the cars, and, under the conditions likely to exist in mid-January, was unsuccessful, and fell so that he received the injury without his attempt being observed by the train hands as they went by to the northward. This theory is consistent with the testimony of the engineer of train No. 94 that he was crouching by the ■side of the track making signals as that train went south a few minutes after. It is also consistent with, the description of' the blood spotsj which are not of the dimensions likely to have been developed from hours of bleeding.

Of course it is not at all necessary for the defendant to-prove how the injuries were received. It is only necessary that there should be some reasonable hypothesis to account for the fact of injury to deprive it of any strong probative force-in favor of plaintiffs theory that it was received at the time he was ejected from the passenger train two hours before he-was found. Where there are two reasonably'probable theories to account for an injury the burden is upon the plaintiff' to prove by some credible evidence that one which establishes defendant’s liability. Musbach v. Wis. C. Co. 108 Wis. 68, 84 N. W. 36. In the situation thus disclosed, the plaintiffs-uncorroborated testimony that he received -his physical injuries when ejected from the passenger train and that he was. picked up by the log train at a point north of Hixon was rendered incredible. The verdict awarding him damages for-that injury was wholly unsupported, and error was committed in refusing to set it aside.

The only other error assigned relates to a detail of the instructions not likely of repetition upon retrial, which, therefore, we need not discuss.

By the Court.- — Judgment reversed, and cause remanded' for a new trial.