Strong v. City of Stevens Point

• Decision Date: 03 February 1885
• Citation: 22 N.W. 425,62 Wis. 255
• Parties: STRONG, ADM'R, ETC., v. CITY OF STEVENS POINT.
• Court: Wisconsin Supreme Court

62 Wis. 255

22 N.W. 425

STRONG, ADM'R, ETC.,

v.CITY OF STEVENS POINT.

Supreme Court of Wisconsin.

Filed February 3, 1885.

Appeal from circuit court, Columbia county.

Raymond & Haseltine, for respondent.

W. W. O'Keefe and G. W. Cate, for appellant.

ORTON, J.

This action is brought under sections 4255, 4256, Rev. St., to recover damages for the benefit of his father and mother, occasioned by the death of their infant son, of about the age of eight years, caused by a defect and want of repair of one of the bridges of said city. Edward Strong, the deceased, was the son of the plaintiff, who sues in a representative capacity, as administrator of the estate of the deceased, for himself and his wife, the mother of the deceased, as his lineal ancestors. The bridge spanned a wide slough, connected with the Wisconsin river, and on one of the principal streets of said city, running north and south, and had a railing on the east side about three feet high, and the bridge was two feet and six inches above the surface of the water. On the east side of the bridge and in the traveled part thereof there was a hole about three feet long and about ten inches wide which had existed for a considerable length of time.

The testimony tended to prove that the deceased lived with his parents in a house about 60 rods north of the bridge, and on the day of his disappearance he left home and went towards the bridge, and then onto the bridge, and walked along on the east side towards and in the vicinity of said hole, and suddenly disappeared from the sight of the only witness who saw him go towards and on the bridge. His hat, which was of straw, and large, was found in the water west of the hole, and his body was found in the water about six feet west of the hole, in the direction of the current of the water in the slough, caused by an east wind, and under the bridge. When last seen, the deceased was walking on the east side of the bridge, in the traveled track on that side, towards the south end of the bridge, as if intending to pass over it. There was machinery in operation near the south end of the bridge, that might have attracted his attention as he was approaching it. The principal witness was a youth by the name of Sherwood, who lived about 1,000 feet from and in sight of the east side of the bridge, across a bend in the slough, and who would have to go west, and then south around certain buildings, to approach the bridge; and he testified that he saw the deceased before he got to the bridge, and then again when he went on, and, lastly, when he was about half way across the bridge. He was standing where he could see the head of the deceased above the railing of the bridge. He looked around about five seconds towards his own house, and then looked again towards the bridge, and the deceased had disappeared.

These are substantially the main facts which need to be considered in disposing of the questions involved in the record. One ground for the motion to set aside the verdict for the plaintiff, and for a new trial, was that the verdict was against a preponderance of the testimony. Without recapitulating the evidence, but after its careful consideration, we think that it was sufficient to warrant the jury in finding that the deceased came to his death by stepping or falling through that hole in the bridge, and without culpable negligence on his part or on the part of his parents, and by the culpable negligence of the city defendant in not repairing such a gross defect in the bridge after ample notice of its existence. The other errors assigned will be disposed of in their order.

1. The two questions put to the witness Wade-- First, whether the hat of the deceased could go through the hole; and, second, whether the witness Sherwood could see the head of the deceased above the railing of the bridge from the place where he stood--are alike in principle, and may be disposed of together. Objection to the question whether the witness laid his own hat on the hole to see whether it would go through, after having testified that he saw the hat of deceased and that it was larger than his own, was properly sustained, because the witness had not compared the two hats by measurement, and had not stated the size of either of the hats or of the hole, and he was asked for a mere opinion, without any data from which it could be correctly formed; and without such data it was immaterial whether he placed his own hat on the hole to see whether it would go through or not, and the disposition of this preliminary objection prefigures the true ruling upon the above question.

The witness had not testified that he ever stood where the witness Sherwood stood when he saw the head of the deceased above the railing of the bridge, to determine whether he also could have seen the head of a boy of his age and size above the railing, and had not testified that he knew the height of the deceased boy, or to any other fact upon which he would be justified in forming or stating any such opinion, and so as to whether the hat of the deceased would, in his opinion, go through the hole. The size of the hat and of the hole are necessary facts for even the jury to find the conclusion whether his hat could or could not go through the hole. The admission of such evidence would establish the rule that a witness might state his opinion, not based upon any facts which would bind or influence the jury, when the jury would not be justified in forming any such opinion for themselves. The hat was of straw, and easily bent and compressed, and how could the witness know that it could not go through the hole? The question whether, in the opinion of the witness, the deceased boy was tall enough, so that his head could be seen above the railing, is alike objectionable, because he had not stated, and no one had stated, the exact height of the boy. All such facts are not matters of opinion but of proof. The rule which excludes such evidence as this was recognized by this court in Veerhusen v. Chicago & N. W. Ry. Co. 53 Wis. 689;S. C. 11 N. W. REP. 433. See, also, 1 Greenl. Ev. § 441; Joyce v. Insurance Co. 45 Me. 168; Whitmore v. Bowman, 4 G. Greene, 148;Ames v. Snider, 69 Ill. 376;Bissell v. Wert, 35 Ind. 54. It may be observed in this connection that there was evidence without objection that boys as large and larger than the deceased had been through that same hole.

2. A Mrs. Strong was sworn as a witness for the plaintiff, and objection was made on behalf of the defendant that she was incompetent because she was the wife of the plaintiff. It is true, as contended by the learned counsel of the plaintiff, that at that stage of the case it did not appear that she was the wife of the plaintiff, but on her examination it soon appeared that she was the mother of the deceased boy, and it had already appeared that the plaintiff was his father; and it would be quite too technical now to insist that there was no sufficient proof of their marriage to justify the objection. The question is an important one, and should be well considered. It has been already stated that the plaintiff sues in his representative capacity as administrator of the estate of the deceased, and for the benefit of his lineal ancestors, who are the plaintiff and his wife, in equal interest. The only statutory exception to the common-law rule that husband and wife may not be witnesses for or against each other, is when they are parties to the same action. When husband and wife are parties to the same suit, they may testify as other witnesses, notwithstanding their interest in the suit, and their marital relations. Laws 1858, c. 134, § 2; Barnes v. Martin, 15 Wis. 240;Hackett v. Bonnell, 16 Wis. 471;Carney v. Gleissner, 58 Wis. 674;S. C. 17 N. W. REP. 398.

The language of the statute is: “A party to a civil action or proceeding may be examined as a witness,” etc. May this statute be construed to embrace real parties in interest when they are not nominal parties to the action? If so, then the real parties in interest, if they are husband and wife, may testify in the action. Parties in interest, or those persons who are interested in the event of the suit, by the common-law rule, were incompetent as witnesses by reason of their interest alone; but the same statute, in section 1, provides that “no person shall be disqualified as a witness in any civil action or proceeding, by reason of his interest in the event of the same, as a party or otherwise,” etc. It is by reason of their interest in the event of the suit that the nominal parties to it are disqualified. They were never disqualified simply because they were parties. It was because they were also parties in interest. By force of the statute, which does not except husband and wife, all parties are allowed to testify in their own behalf. If parties in interest, who are not made nominal parties to the action, are debarred from testifying as witnesses in the suit because of their marital relations, and may become qualified to do so by being made nominal parties, then, in such a case as this, where the husband and wife, who are jointly and exclusively interested in the subject-matter of the suit and entitled to the damages recovered, cannot be made nominal parties to the action, but the suit...