Rudiger v. Chi., St. P., M. & O. Ry. Co.

• Decision Date: 22 November 1898
• Citation: 77 N.W. 169,101 Wis. 292
• Court: Wisconsin Supreme Court
• Parties: RUDIGER v. CHICAGO, ST. P., M. & O. RY. CO.

101 Wis. 292

77 N.W. 169

RUDIGER

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

Supreme Court of Wisconsin.

Nov. 22, 1898.

Appeal from circuit court, Dunn county; E. W. Helms, Judge.

Action by Bernadina Rudiger, administratrix, against the Chicago, St. Paul, Minneapolis & Omaha Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

The circumstances out of which the cause of action set out in the complaint arose are the same as those mentioned in 96 Wis. 243, 70 N. W. 486;25 C. C. A. 486, 80 Fed. 361; and 28 C. C. A. 358, 83 Fed. 437. Early in the morning of September 15, 1894, a western-bound freight train on defendant's road was wrecked at a point in St. Croix county, between Hammond and Roberts stations. Several cars (one loaded with coke, two containing naptha in metal tanks, and one containing kerosene oil in a metal tank) and the caboose became separated from the rest of the train and derailed. The forward car, containing naphtha, caught fire and exploded soon after the wreck, setting fire to the remaining cars. The fire continued to burn for some hours, and until about 11 o'clock, when the tank containing kerosene oil exploded, and threw the burning oil on plaintiff's intestate, causing injuries from which he died. On the morning of that day, Mr. Rudiger, the decedent, purchased a ticket at St. Paul, and boarded one of defendant's passenger trains, bound for Menomonie, Wis. The train arrived at the scene of the wreck about 10 o'clock, and was stopped some little distance west of the burning cars. A gap was opened in the right of way fence on the south side, some 258 feet west of the burning tank; and the passengers, together with the mail, express matter, and baggage, were transferred through the fields, south, to another gap in the fence, 256 feet east of the tank. The mail matter was deposited on the right of way, near the track, north and a few feet westerly of the west post of the east gap, and the express and baggage extended easterly for a distance of some 40 feet or more. Mr. Rudiger followed the other passengers to the east gap. No specific directions were given the passengers as to where they should stay. The burning tank attracted considerable attention, and some of the passengers went westerly on the right of way, past the gap, towards the car. The fire was burning with great violence, producing a loud, roaring noise, with flames shooting up. The injury complained of occurred about an hour after the passenger train arrived. At the time of the explosion of the oil tank which caused the injuries to Mr. Rudiger, the great body of the passengers were standing around and easterly of the east gap. The plaintiff insists that at the time of the explosion Mr. Rudiger was standing near the baggage, at a point a little east of the west post of the gap; that when the tank exploded the burning oil was thrown upon him, inflicting injuries which occasioned his death. The location of Rudiger was denied by defendant, and its testimony tended to show that he was some distance west of the gap, towards the tank, on the right of way. A special verdict was taken, in which the jury found, in substance, that the defendant was guilty of a want of ordinary care, in selecting the place it did for its temporary station, which was the proximate cause of the injuries to Rudiger; that Rudiger was at the temporary station at the time he received his injuries, and not west of the gap; that he was not guilty of any want of ordinary care which contributed to his injuries; and that the plaintiff's loss was $4,000. A motion to set aside the verdict was denied, and judgment entered thereon. The defendant appeals. Defendant assigns error as to the admission of testimony, remarks of counsel during the trial, imperfections in the verdict submitted, and excessive damages, all of which are noticed in the opinion, and do not require statement.

L. K. Luse and H. H. Hoyden, for appellant.

J. R. Mathews, T. F. Frawley, and C. T. Bundy, for respondent.

BARDEEN, J. (after stating the facts).

The errors assigned, and which we feel called upon to consider, are as follows: (1) Improper admission of evidence; (2) improper remarks of counsel for plaintiff; (3) failure of the special verdict to cover all the issues in the case; (4) refusal of the court to set aside the verdict.

1. Numerous objections were made to testimony offered by the plaintiff, but only such as are herein mentioned are deemed to be of sufficient importance to require notice. A wooden model, purporting to have been made on a scale, and representing the track and right of way between the gaps in the fence, was presented by the plaintiff, and offered and received in evidence. This was objected to as being inaccurate and deceptive,--as giving a false idea of the locus in quo. The model was made by a person who had never been on the ground, and from figures, as to heights and distances, which were afterwards demonstrated to be little more than estimated. Except for the fact that maps and photographs of the scene were presented, and accurate measurements of distances and of the height of surrounding objects submitted, we should be inclined to hold that the model was so inaccurate as to be inadmissible. As it appears to us now, the evidence as to those matters was so definite and positive that we cannot believe the jury were deceived by the model. One of the serious questions litigated on this trial was as to the exact location of Rudiger at the time of the explosion. The plaintiff insisted that he was standing by the baggage, east of the west post of the gap, while the defendant insisted that he was west of the gap. One Levi W. Meyers was produced as a witness for plaintiff, and was asked the following questions: “Where were you standing at the time you received the injuries apparent on you, with reference to the east gap?” This was objected to, “unless the witness proposes to testify with regard to the injuries to Mr. Rudiger or to Mr. Rudiger's whereabouts.” The objection was overruled, and the witness answered: “It is a question whether I was standing or running at the time I was struck. At the time I first noticed the explosion, I was standing just back of the mail matter. I mean southwest. Q. Where were you, with reference to an imaginary line drawn from the west line of the east gap to the mail matter? A. I think perhaps I was a few feet--maybe four or five feet--west of it.” Witness was one of the few who was severely injured by this explosion. He then had a suit pending against the defendant. The question in no way identified the witness with reference to Rudiger. At no place in his testimony does he attempt to locate Rudiger at the time of the explosion. His location was some distance west of where it is claimed Mr. Rudiger stood. His answers in no way tended to help the jury in the all-important inquiry as to Rudiger's position. On the contrary, they introduced a collateral issue, prejudicial to defendant, and were sufficiently flagrant to come within the rule of condemnation laid down by this court in Colf v. Railway Co., 87 Wis. 273, 58 N. W. 408.

2. During the trial, and in the course of the argument of the case to the jury, numerous exceptions were taken to the remarks of plaintiff's counsel in the presence of the jury deemed to be prejudicial to the defendant's interests. In some instances the court ruled the remarks improper, and directed the jury to disregard them, and in others simply passed them without ruling. The general tendency of the objectionable remarks was to inflame the minds of the jury, and to create sympathy for the plaintiff and prejudice and resentment towards the defendant. Some allowance must always be made for the zeal of counsel, but when it is evident that there is a design to stir up resentment in the minds of the jury, to arouse their passions and sympathies, and to discredit and prejudice the defendant's case, a mere ruling that the jury should disregard the objectionable remarks does not cure the evil. The circumstances of this accident were especially distressing and deplorable. Mr. Rudiger was so severely burned that death ensued. Several of the witnesses on the trial were dreadfully burned and disfigured. The conditions were such that insinuations of bad faith, charges that defendant's witnesses were “ghouls” and “vultures” “prowling among the cots in the hospital,” that defendant's claim agent was tampering with plaintiff's witnesses, and that other witnesses were there, violating confidential relations, were well calculated to create unfavorable impressions, against which the defendant was powerless. The poison was there, and the ruling of the court would not be a sufficient antidote. Defendant's alleged negligence was not so palpable, nor the circumstances so desperate, as to warrant any such procedure. As remarked by the court in Brown v. Swineford, 44 Wis. 283: “Doubtless the circuit court can, as it did in this case, charge the jury to disregard all statements of fact not in evidence. But it is not at all certain that a jury will do so. Verdicts are too often found against evidence, and without evidence, to warrant so great a reliance...