Billington v. E. Wis. Ry. & Light Co.

• Court: Wisconsin Supreme Court
• Writing for the Court: TIMLIN
• Citation: Billington v. E. Wis. Ry. & Light Co., 137 Wis. 416, 119 N.W. 127 (Wis. 1909)
• Decision Date: 05 January 1909
• Parties: BILLINGTON v. EASTERN WISCONSIN RY. & LIGHT CO.

137 Wis. 416

119 N.W. 127

BILLINGTON

v.EASTERN WISCONSIN RY. & LIGHT CO.

Supreme Court of Wisconsin.

Jan. 5, 1909.

Appeal from Circuit Court, Fond du Lac County; Chester A. Fowler, Judge.

Action by Pearl Billington against the Eastern Wisconsin Railway & Light Company for injury to the person of plaintiff from the alleged negligence of defendant. From a judgment for defendant, plaintiff appeals. Affirmed.

Among other references upon the part of the appellant were the following: Zentner v. Oshkosh G. L. Co., 126 Wis. 196, 105 N. W. 911; 51 Cent. Law J. P. 449; Revolinski v. Adams C. Co., 118 Wis. 324, 95 N. W. 122;Grant v. Keystone, etc., L. Co., 119 Wis. 229, 96 N. W. 535, 100 Am. St. Rep. 883; Shearman & Redf. Neg. 87.

Among other references upon the part of the respondent were the following: Wunderlich v. Palatine I. Co., 104 Wis. 382;80 N. W. 471; Keasby Elec. Wires, § 256; 15 Cyc. 476; 7 Current Law, 1264; Randall v. N. W. Tel. Co., 54 Wis. 140, 11 N. W. 419, 41 Am. Rep. 17.Morse & Williams, for appellant.

E. S. Bragg and Doyle & Hardgrove, for respondent.

TIMLIN, J.

The jury rendered a special verdict finding the negligence of the defendant and consequent damage to the plaintiff in the sum of $3,000. Among the questions of the special verdict was one numbered 6, which inquired whether there was any want of ordinary care on the part of the plaintiff which contributed to produce his injury. This the jury answered “No.” Upon motion of the defendant the circuit court set aside this answer, and answered the question in the affirmative, and ordered judgment for defendant. There was no exception taken to this ruling of the court. The order for judgment on the special verdict is properly part of the judgment roll, and therefore no exception is necessary to review such order. Section 2872, St. 1898. Upon appeal from a judgment, this court is authorized to review any intermediate order or determination of the court below which involves the merits or necessarily affects the judgment, and which appears upon the record transmitted whether the same be excepted to or not. Section 3070, St. 1898. Morris v. Nat., etc., Society, 106 Wis. 92, 81 N. W. 1036;Jones v. Broadway Roller Rink Co. (Wis.) 118 N. W. 170. A written direction changing the answer to a question of the special verdict incorporated into the order for judgment upon that verdict is within the class of orders above described which are reviewed in this court in the absence of exception thereto. In this respect the case differs from Shannon v. Dorsinski, 134 Wis. 68, 114 N. W. 129. But in the instant case there is also no statement in the bill of exceptions or in the certificate appended that the bill contains all the evidence. The nature of the question determined by the circuit court in changing the answer of the jury to the sixth jury finding necessitates an examination into all the evidence bearing upon the contributory negligence of the plaintiff. We have nevertheless looked into the evidence returned sufficiently to ascertain whether there might not be such clear evidence returned contrary to the decision below as to make it proper for us to send...