Stewart v. Everts

• Decision Date: 25 February 1890
• Parties: STEWART ET AL., TRUSTEES, ETC. v. EVERTS.
• Court: Wisconsin Supreme Court

76 Wis. 85

44 N.W. 1092

STEWART ET AL., TRUSTEES, ETC.

v.EVERTS.

Supreme Court of Wisconsin.

Feb. 25, 1890.

Error to circuit court, Portage county; CHARLES M. WEBB, Judge.D. S. Wegg and Howard Morris, for plaintiffs in error.

Cate, Jones & Sanborn, for defendant in error.

TAYLOR, J.

The defendant in error brought an action in the circuit court to recover damages of the plaintiffs in error, as trustees in possession of and operating the Wisconsin Central Railroad in this state, for an alleged injury received by him while traveling as a passenger on a railroad train on said road. The injury occured on a very cold morning in January, by the breaking of a rail, and throwing the cars from the track, and thereby injuring the plaintiff, who was at the time in the postal car of said train. The claim of the plaintiff on the trial was that the breaking of the rail was caused by the imperfect construction and maintenance of the road at the place of the accident. The plaintiffs in error contended that the accident was the result of the extreme cold at the time, being from 30 to 40 deg. below zero, and not from any defect in the construction or main tenance of the track at the place of the accident. On the trial, the plaintiff in the court below recovered a verdict; and from the judgment entered upon such verdict the defendants bring a writ of error to this court, alleging several grounds of error.

On the hearing in this court, the learned counsel for the plaintiffs in error contend that, upon the whole evidence given on the trial, the learned circuit judge should have directed a verdict for the defendants, and asks this court to reverse the judgment of the circuit court for error in that respect, and remand the case with directions to the circuit court to enter a verdict for the defendants. If we were of the opinion that the learned counsel were correct in their contention that the circuit court should, upon the whole evidence, have directed a verdict for the defendants, still we are of the opinion that this court, upon appeal, ought not to direct such disposition of the case on reversal of the judgment. As a general rule, this court can only reverse the judgment of the trial court in an action at law, when the case is tried by a jury upon issues of fact, and remand the case for a new trial. We have no authority to direct the trial court to correct the error upon an issue of fact, and enter judgment. We cannot say that upon a new trial the party who failed in his proofs on the first trial may not sustain the issue upon a new trial. Upon an appeal or writ of error from a judgment at law, when the action is tried by a jury, this court does not retry the case, but simply corrects the errors, if any, which have occurred upon the trial in the court below, and it is only in exceptional cases that this court will direct a judgment to be entered in the action by the court below. Pickett v. School-Dist., 25 Wis. 551-559. In this case the trial court was directed to dismiss the complaint, because it was apparent that the plaintiff could not, upon any state of the proofs he might make upon a new trial, recover in the action.

The learned counsel for the plaintiffs in error allege as error that the court permitted, against their objections, evidence to be introduced on the part of the plaintiff showing, or tending to show, that the track of their railroad was out of repair at points distant from the place of the accident. We think the court extended the rule too far in allowing the plaintiff to show the condition of the track at places not in the vicinity of the place where the accident occurred, and which defects in the road could not, by any possibility, have in any way contributed to the accident which occurred at the time of the plaintiff's injury.

The plaintiff was permitted to bring into court, and exhibit to the jury, pieces of a broken rail which the plaintiff claimed to have picked up at the place of the accident about six months after the accident occurred. He was also allowed to comment to the jury upon the character and condition of these pieces of rail in his opening argument. To the introduction of these pieces of rail in evidence, and to the comments of the counsel to the jury upon their character and condition, the defendants duly excepted. We think it was error to permit the plaintiff to exhibit these pieces of rail to the jury, and comment on them in his argument to the jury. One claim of the plaintiff was that the rail was an imperfect one, and the jury found that it “was not a good, sound rail.” After careful review of the evidence upon this question, it appears to me that there is no evidence tending to show the rail was not a good, sound rail, unless it can be inferred that it was not because it was broken by the passage of the train, or from the pieces of rail produced and exhibited by the plaintiff to the jury. Admitting that the pieces of rail produced in court were sufficiently identified as pieces of the broken rail, (which is, certainly, not clearly established,) it seems to us that it was error to permit the jury to draw a conclusion as to the soundness or...