Peat v. Chi., M. & St. P. Ry. Co.

• Decision Date: 08 May 1906
• Citation: 107 N.W. 355,128 Wis. 86
• Parties: PEAT v. CHICAGO, M. & ST. P. RY. CO.
• Court: Wisconsin Supreme Court

128 Wis. 86

107 N.W. 355

PEAT

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Wisconsin.

April 17, 1906.

Dissenting Opinion, May 8, 1906.

Appeal from Circuit Court, Wood County; Chas. M. Webb, Judge.

Action by John Peat against the Chicago, Milwaukee & St. Paul Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded.

Plaintiff was a passenger on defendant's train leaving Minocqua for the south between 4:00 and 4:15 p. m. January 13, 1902. At or near Hixon, a flag station with no buildings or platform, plaintiff was put off the train as result of a controversy as to nonpayment of fare, about three miles and a half from Minocqua. About 6:30, the same evening, he was picked up by a north-bound train at a point 500 or 600 feet south of the south end of the passing switch at Hixon with his foot cut nearly off so that it was hanging by the tendon Achilles; was taken to Minocqua and treated, the foot being amputated. The testimony of the plaintiff and two other witnesses offered by him was that he was ejected at a point about three-quarters of a mile north of Hixon. The testimony of the train hands and of one passenger was that his ejection took place at the station of Hixon and at a point varying from 200 to 500 feet north of the south switch of the passing track at that station. Plaintiff testified that in ejecting him he was pushed down the steps while the train was moving at the rate of five or six miles an hour, and that he swung off, let go his hold and got his foot under the car. The testimony of his two witnesses is that at the time of his ejection from the car the train was moving at some such rate; neither of them saw the manner of his reaching the ground or the fact of his injury. All of the witnesses of the defendant testified to the effect that the train was stationary, having first stopped for the alighting of a passenger, then started again and had been at once stopped after moving from one to three car lengths; also that plaintiff reached the ground in safety, attempted to board the next car, but that the brakeman then alighted and held him away until the rear end of the last car had passed him, and that he was seen standing beside the track for some moments after the train passed on. Plaintiff's further narrative is that, having been ejected three-quarters of a mile north of Hixon, and discovering that his foot had been cut off, he crawled a distance of some 60 or 70 rods along the track when, at a curve about a half a mile north of Hixon, he saw the headlight of an approaching train from the south and crawled off the track to the side and, as this train passed by him, shouted so as to attract the attention of the brakeman, who caused the train to stop, whereupon he was taken into the caboose and carried to Minocqua. Another freight train, No. 94, reached Hixon about 6:20 p. m., waited to pass a special log train from the south. As that log train appeared around the curve the engineer of No. 94 saw a man walking on the track 600 or 700 feet south of him, who, as the north-bound train approached, turned off the track and disappeared from his vision. After the log train had gone onto the switch at Hixon as No. 94 proceeded south, the engineer of that train saw something near this same point crawl across the track and the head brakeman saw a man lying on the west side of the track, who waved his hand and said something which he did not understand. That train passed on southward. Then the log train backed southward off the switch, and, as it did so, the brakeman on the caboose saw something crawl across the track, and as they passed it, the plaintiff called to him that his foot was cut off. They accordingly brought the caboose beside the plaintiff and lifted him in and carried him to Minocqua. Next morning the section foreman, having learned of the accident, and seen plaintiff, went to Hixon, found at a point about 500 feet south of the south switch on the snow a considerable spot of blood on each side of the track and a trail of blood across the track from one to the other, but found no blood elsewhere. A general verdict for the plaintiff was returned, a motion for a new trial for errors and because the verdict was contrary to the evidence was overruled, and judgment entered for plaintiff, from which the defendant appeals.

Kerwin and Siebecker, JJ., dissenting.J. W. Cochran, H. H. Field, and C. H. Van Alstine (Chas. E. Vroman, of counsel), for appellant.

W. E. Wheelan, for respondent.

DODGE, J. (after stating the facts).

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. None 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. Insurance Co., 104 Wis. 382, 387, 80 N. W. 467, to the effect that this court will reverse when it appears that the 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. Insurance Co., 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 willfully or ignorantly or recklessly so testifies”; and again in Beyer v. Insurance 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. Railway Co., 101 Wis. 145, 150, 77 N. W. 179;O'Brien v. Railway Co., 102 Wis. 628, 78 N. W. 1084;Musbach v. Wis. Chair Co., 108 Wis. 68, 84 N. W. 36; Bourda v. Jones, supra; Ellis v. Railway 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 with 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 with 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 with reference to such business is not credible. Secondly, we must ignore the physical fact that the only blood stains on the snow 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 inconsistent with the testimony of the plaintiff as to the place where he was picked up can hardly be conceived.

But almost equally conclusive are the facts against the theory that he could have received the injury which h...