Hardy v. Milwaukee St. Ry. Co.

• Citation: 89 Wis. 183,61 N.W. 771
• Parties: HARDY v. MILWAUKEE ST. RY. CO.
• Decision Date: 08 January 1895
• Court: United States State Supreme Court of Wisconsin

89 Wis. 183

61 N.W. 771

HARDY

v.MILWAUKEE ST. RY. CO.

Supreme Court of Wisconsin.

Jan. 8, 1895.

Appeal from superior court, Milwaukee county; R. N. Austin, Judge.

Action by Mary Hardy against the Milwaukee Street-Railway Company for personal injuries. From a judgment for plaintiff, defendant appeals. Reversed.

The plaintiff was injured September 7, 1891, while alighting from defendant's electric street car, on Van Buren street, in the city of Milwaukee. She claimed in her complaint, and by her evidence on the trial, that the car on which she was a passenger had stopped to allow her to alight, and that while she was stepping off from the car it was negligently started in motion by the conductor or motorman, and she was thereby thrown to the ground. On the part of the defendant, it was claimed in the answer, and by evidence on the trial, that the plaintiff voluntarily stepped from the car while it was in motion, and, thus, that her fall was the result of her own negligence. The jury returned a special verdict, by which they found (1) that the car on which plaintiff was riding stopped at the corner for her to alight; (2) that the plaintiff did not alight from the car before it came to a full stop; (3) that the plaintiff was thrown down while attempting to alight from the car, by reason of the car being started by the motorman while she was in the act of leaving it; (4) that she did not have time to descend from the car to the ground before it started; (5) that the defendant's employés were guilty of negligence, or want of care, skill, and prudence, which caused the injury to plaintiff; (6) that the plaintiff was not guilty of contributory negligence; (7) that her damages amount to $7,000. Upon this verdict, judgment was rendered for the plaintiff, and defendant appeals.Winkler, Flanders, Smith, Bottum & Vilas, for appellant.

Austin & Hamilton, for respondent.

WINSLOW, J. (after stating the facts).

We were strongly urged to hold that the verdict is clearly against the preponderance of the evidence, as was held in McCoy v. Railway Co., 82 Wis. 215, 52 N. W. 93. It is true that the plaintiff's testimony to the effect that the car had stopped when she started to alight, and that she was thrown down by the negligent starting thereof, stands substantially alone, and that it is contradicted by several witnesses, who testified that she attempted to alight before the car had fully stopped; but there are no circumstances in the case which make her story intrinsically improbable or incredible, as there were in the McCoy Case, and we cannot say, after reviewing the evidence, that the refusal to set aside the verdict, as against the preponderance of the evidence, was error.

The trial judge charged the jury that “the weight of evidence does not depend upon the number of witnesses to a given fact, but it depends upon the amount of credit that you will give to the testimony of one or all of the witnesses in the case”; and this is alleged as error, because it is said that the effect of it is to tell the jury that the number of witnesses cuts no figure on the question of preponderance of evidence. If this instruction stood alone, it might be subject to criticism, as a similar instruction was in the McCoy Case; but the trial judge, in the present case, also charged the jury in the same connection, substantially, that the manner of the witnesses on the stand, their apparent interest in the case, their means and...