Kausch v. Chi. & Milwaukee Elec. Ry. Co.

• Decision Date: 11 January 1921
• Court: Wisconsin Supreme Court
• Parties: KAUSCH v. CHICAGO & MILWAUKEE ELECTRIC RY. CO.

173 Wis. 220

180 N.W. 808

KAUSCH

v.CHICAGO & MILWAUKEE ELECTRIC RY. CO.

Supreme Court of Wisconsin.

Jan. 11, 1921.

Appeal from Circuit Court, Milwaukee County; Oscar M. Fritz, Judge.

Action by Charles Kausch against the Chicago & Milwaukee Electric Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.

Action begun in the civil court of Milwaukee county against the Chicago, North Shore & Milwaukee Railroad and this defendant to recover damages for an injury sustained by plaintiff while attempting to board one of defendant's street cars. The complaint alleged:

“That while your plaintiff was in the act of boarding said street car which had come to a stop, and while your plaintiff had one foot upon the platform of said street car and one hand upon the hand bar of said street car, the motorman in charge of the operation of said street car negligently and carelessly caused said street car to suddenly and with a fast movement to proceed in a northerly direction from Grove street, causing your plaintiff to be thrown violently and forcibly against an automobile which was parked near the southeast corner of the intersection of Grove street and Lincoln avenue and in close proximity to the north-bound street car track,” causing damage to the plaintiff in the sum of $2,000.

The answer, among other defenses, alleged contributory negligence on the part of plaintiff and contained a general denial.

The jury so far as this defendant is concerned returned a special verdict as follows:

“Question 1. Was the car of the defendant Chicago & Milwaukee Electric Railway Company in motion at the time the plaintiff attempted to board the same? Answer: No.

Question 2. Was the defendant Chicago & Milwaukee Electric Railway Company's conductor guilty of negligence in giving the signal to start the car while plaintiff was in the act of boarding the car? Answer: Yes. * * *

Question 7. Was the plaintiff guilty of any want of ordinary care which proximately contributed to produce his injury? Answer: No.

Question 8. If the court should be of the opinion that the plaintiff is entitled to recover, at what sum do you assess his damages? Answer: $2,000.”

Upon this special verdict by mistake a judgment was entered against the Chicago, North Shore & Milwaukee Railway Company. It appealed to the circuit court, and the defendant was brought in on an order to show cause why it should not prosecute the appeal in the circuit court. The trial resulted in a dismissal of the action as to the Chicago, North Shore & Milwaukee Railway Company and in an affirmance of the judgment as to the defendant, it having been substituted in place of the Chicago, North Shore & Milwaukee Railway Company to cure the clerical mistake that occurred in entering up judgment against the wrong defendant. From the judgment so entered the defendant appealed.

Edgar L. Wood, of Milwaukee (A. L. Gardner, of Chicago, Ill., of counsel), for appellant.

Ray J. Cannon and A. W. Richter, both of Milwaukee, for respondent.

VINJE, J. (after stating the facts as above).

[1] Error is claimed because the circuit court did not dismiss the appeal of the Chicago, North Shore & Milwaukee Railway Company and send the case back to the civil court for correction of the judgment. Since it is apparent that it was a pure clerical mistake to render judgment against the Chicago, North Shore & Milwaukee Railway Company instead of against the defendant herein, and since it was brought in and had its day in court without in any respect, so far as we can see, being prejudiced by the manner of its appearance, we conclude the circuit court properly corrected the judgment instead of remanding the case for that purpose.

[2][3][4] The plaintiff alleged, and the burden is upon him to prove, that the car stood still when he attempted to board it. The negligence complained of was the sudden starting of the car while he was in the act of boarding it. No recovery can be had unless such negligence is established by a preponderance of the evidence and to a reasonable certainty, for it is the very gravamen of the action, and the burden of proof is upon the plaintiff to establish it. Nevertheless the civil court instructed the jury that the burden of proof was upon the defendant to prove the affirmative of the issue presented by question No. 1. This was error. The court should have instructed the jury that the burden of proof was upon the plaintiff to establish the fact that the car was not in motion when he attempted to board it; or, better still, the question should have been so framed as to call for plaintiff's proving the affirmative by wording the question as follows: Was defendant's car standing still when plaintiff attempted to board it? Questions should always be so framed as to put the burden of proof upon the affirmative. This court has consistently held that the placing upon the wrong party of the burden of proof as to a material issue is prejudicial error where the jury finds against the party upon whom the burden has been wrongly placed. Parker v. Hull, 71 Wis. 368, 37 N. W. 351, 5...