Burns v. N. Chi. Rolling-Mill Co.

• Decision Date: 15 May 1884
• Citation: 19 N.W. 380,60 Wis. 541
• Parties: BURNS v. NORTH CHICAGO ROLLING-MILL CO.
• Court: Wisconsin Supreme Court

60 Wis. 541

19 N.W. 380

BURNS

v.NORTH CHICAGO ROLLING-MILL CO.

Supreme Court of Wisconsin.

Filed May 15, 1884.

Appeal from circuit court, Milwaukee county.Johnson, Rietbrock & Halsey, for respondent, Michael A. Burns.

Finches, Lynde & Miller, for appellant, North Chicago Rolling Mill Co.

TAYLOR, J.

This action was brought to recover damages for an injury sustained by the plaintiff while crossing the track of a railroad owned and used by the defendant company at Bay View, near the city of Milwaukee. The accident occurred between 7 and 8 o'clock in the evening of the eighteenth of October, 1881, at a place where the company's railroad track crosses a public highway leading from Bay View to the city of Milwaukee. The plaintiff was driving an express wagon with one horse, and as he came onto the crossing a train of cars loaded with coal was backing down across the street. There were 12 or 13 dump cars, and the engine was pushing the cars ahead of it, so that the engine was about 150 feet from the plaintiff and his wagon, when he was struck by the coal car at the end of the train.

The jury found a special verdict, upon which the court directed a judgment for the plaintiff. The company appeals, and alleges for error-- First, that the court erred in refusing to order a nonsuit on the ground that the evidence of the plaintiff showed conclusively that the plaintiff was guilty of negligence which directly contributed to the accident, and because the evidence failed to show any negligence on the part of the defendant; second, in refusing to give the tenth and eleventh instructions asked by the defendant; third, in giving improper instructions to the jury; fourth, in refusing to grant the motion to set aside the verdict and for a new trial.

After reading the whole evidence, as presented by the bill of exceptions, we have very grave doubts whether there is any negligence shown on the part of the railroad company which would justify a verdict against it, and at the same time we find considerable evidence tending to show negligence on the part of the plaintiff which contributed to the injury; but we are not prepared to say, as a matter of law, that there was such an entire want of evidence showing negligence on the part of the company, nor that there was such conclusive evidence of negligence on the part of the plaintiff as would justify the court in taking the case from the jury upon either of said issues. We cannot say, therefore, that the circuit judge erred in refusing to nonsuit the plaintiff upon either of the points urged by the appellant. Whether the exception taken to the refusal of the court to give the tenth and eleventh instructions asked, and the exceptions to the instructions given, were well taken or otherwise, we do not deem it necessary to determine. We deem it proper, however, to suggest that, when the jury are called upon to render a special verdict, the trial court may, in its discretion, limit its instruction to such matters as are necessarily involved in the questions of fact submitted to them.

Of the sixty-one questions which the jury were required to answer as their special verdict, there were but three to which the instructions asked and refused, or to which the instructions given and excepted to, could have any application. They are the thirty-sixth question, submitted at the request of the defendant, viz., “Do you find for the plaintiff or defendant?” and the ninth and tenth questions submitted by the plaintiff, viz., “Was the plaintiff guilty of negligence on his...