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

• Decision Date: 16 October 1923
• Citation: 181 Wis. 456,195 N.W. 407
• Parties: THOE v. CHICAGO, M. & ST. P. RY. CO.
• Court: Wisconsin Supreme Court

181 Wis. 456

195 N.W. 407

THOE

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

Supreme Court of Wisconsin.

Oct. 16, 1923.

Appeal from Circuit Court, Columbia County; Chester A. Fowler, Judge.

Action by Martin Thoe, as administrator of the estate of Thomas Hermanson, deceased, against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

On December 22, 1921, Thomas Hermanson, plaintiff's intestate, was instantly killed on a railroad crossing by the defendant's west-bound passenger train, while driving an automobile south on the highway in the village of Wyocena. This action is brought to recover damages therefor. At the close of the testimony, the court directed a verdict for the defendant, and from the judgment entered thereon plaintiff appeals.Stroud & Stroud, of Portage (H. E. Andrews, of Portage, of counsel), for appellant.

Herman L. E. Kern, Atty. Gen., and Robert M. Rieser, Deputy Atty. Gen., amicus curiæ.

H. J. Killilea, of Milwaukee, and J. L. Mahoney, of Portage, for respondent.

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

[1] It appears without dispute that when the deceased reached a point 100 feet north of the railway track, he had an unobstructed view to the east up the track, from which direction the train was approaching, of three-quarters of a mile, and from that point until he reached the track there was nothing to prevent his having seen the train had he looked. The deceased approached the railroad track at a speed of about 10 to 12 miles an hour. The bell on the locomotive engine was ringing, and the whistle had been blown for the crossing. The negligence charged in the complaint was that defendant was running its train at a great and negligent rate of speed, exceeding 30 miles per hour. The evidence showed that the deceased paid no attention whatever to his surroundings, and drove onto the railroad track without either looking or listening for an approaching train.

Under the repeated decisions of this court the deceased was clearly guilty of contributory negligence, and plaintiff was not, upon any theory of the case, admitting all the facts proven by him to be true, entitled to recover. Twist v. Minneapolis, St. P. & S. S. M. R. Co., 178 Wis. 513, 190 N. W. 449;McMillan v. Chicago, M. & St. P. Ry. Co., 179 Wis. 323, 191 N. W. 510, and cases cited.

In that state of the evidence, it was the duty of the court to direct a verdict. This is so plain that we shall not further discuss this aspect of the case.

[2][3] It is the contention of the plaintiff that the court was without power or authority to direct a verdict by reason of the provisions of section 2857a, Wis. Stats. This section was amended by chapter 31 of the laws of 1923, the amendment being printed in italic type.

“Section 2857a. Whenever in an action tried before a jury all the parties to the action shall, without reservation, move the court to direct a verdict, such motion shall, unless otherwise directed by the court before the discharge of the jury, be considered as equivalent to a stipulation by the parties waiving a jury trial and submitting the entire case to the court for decision of the facts as well as the law; but in no case where a jury has been selected for the trial of a cause and any testimony been taken or evidence introduced, shall a verdict be directed by the trial judge, except upon consent and stipulation of all parties to the cause or for error, in which case a new trial shall be had.”

The language of the amendment is not clear, and embodies some confusion in terms. Where a verdict is directed upon consent and stipulation of the parties, it cannot be said in any proper sense of the term to be a directed verdict at all. It is to all intents and purposes a settlement of the controversy by the parties. In such an event there remains nothing for the court to do but to give effect to the stipulation according to its terms. Nor are verdicts directed for error, and for that reason we cannot conceive for what purpose the words “or for error in which case a new trial shall be had,” are embodied in the amendment. Verdicts are set aside for error, not directed. The statute therefore is held to mean that in no case, where a jury has been selected, shall a court direct a verdict, the exceptions having no application for the reasons stated. Verdicts are never directed in any case except where testimony has been taken, and evidence introduced. The legal effect of the pleadings is tested by an appropriate motion upon the pleadings, not by a motion to direct a verdict.

It is contended by the defendant that the amendment is void, because in violation of the Constitution, in that it is an attempt by the Legislature to diminish the quantum of judicial power reposed by the Constitution in the court. It is contended by the plaintiff that it merely postpones action by the court, and is therefore valid as a statute regulating procedure.

A solution of this important question requires us to consider somewhat in detail the nature and legal effect of a motion to direct a verdict. The plaintiff in an action is not entitled to recover, merely because he introduces testimony or evidence upon the trial. In order to entitle him to recover, he must introduce evidence which is legally sufficient to sustain a verdict, and warrant a judgment in his behalf. In other words, he must produce evidence, which, if accepted as true, is sufficient in law to sustain a recovery. Evidence offered upon a trial has two aspects, or, as is sometimes said, a twofold sufficiency--a sufficiency in law and a sufficiency in fact. From time immemorial, in the common-law courts of this country and in England, it has been the duty and province of the court to determine the legal sufficiency of the evidence. The legal sufficiency of the evidence given upon the trial is ordinarily tested in one of three ways: (1) By demurrer to the evidence; (2) by motion for a nonsuit; and (3) by motion to direct a verdict. A demurrer to the evidence is a method of raising the legal sufficiency of evidence not ordinarily resorted to in legal practice in this state, although it is common in other jurisdictions. See 38 Cyc. 1541, (B), “Demurrer to Evidence,” discussion and cases cited; 5 Wigmore, p. 460, § 2495. For discussion of its early history and development, see Thayer, Preliminary Treatise, pp. 234-239; 26 R. C. L. p. 1064, § 72, and cases cited.

A demurrer to the evidence in later practice at least raised substantially the same questions as are raised by motion for a nonsuit. A judgment rendered, however, upon a demurrer to the evidence was res judicata (Seckler v. Delfs, 25 Kan. 159), differing in that respect from a judgment entered on nonsuit, which, generally speaking, is not conclusive upon the parties, although there are exceptions to the rule.

A motion for a nonsuit must be seasonably made by the defendant, and it is properly made when the plaintiff rests. Its distinctive feature is that it may be granted without prejudice, and, if not upon the merits, it does not conclude the plaintiff. Upon the trial a compulsory nonsuit cannot properly be granted where the evidence in any reasonable view thereof, giving the plaintiff the benefit of the most favorable inferences that can fairly be deduced therefrom, would support a verdict in his favor. Kortendick v. Waterford, 135 Wis. 77, 115 N. W. 331.

A motion to direct a verdict is made at the close of all the testimony. A judgment entered thereon is conclusive of the rights of the parties as to the subject-matter of the action. It is the duty of the court to deny the motion, if there is any credible evidence which, most favorably considered, and with the aid of all inferences which might reasonably be drawn therefrom, tends to establish the liability of the party making the motion. Kaley v. Van Ostrand, 134 Wis. 443, 114 N. W. 817;Gessner v. Roeming, 135 Wis. 535, 116 N. W. 171.

The various methods of testing the legal sufficiency of the evidence to sustain a judgment in favor of the party against whom the motion is made have this common characteristic: That the court is asked to determine whether or not, admitting all of the evidence against the party making the motion to be true, and drawing all inferences which may reasonably be drawn therefrom in favor of the opposite party, the evidence is sufficient in law to sustain a judgment against the moving party. It cannot be disputed that, from the earliest times, both under the common law of England and of this country, the right of a suitor to test the legal sufficiency of the evidence offered against him has been recognized, the authority and power of the court to determine the matter has never been challenged.

In Finkelston v. Chicago, M. & St. P. R. Co., 94 Wis. 270, 68 N. W. 1005, it was said:

“This court rigidly maintains, inviolably, the right of trial by jury, rejecting the rule that obtains in some jurisdictions, that, if the evidence is such that a verdict in favor of one party would be set aside as contrary to the clear preponderance thereof, the court is warranted in directing the proper verdict, and upholds, as the law, that inferences from the evidence in the first instance should be drawn solely by the jury, except where, in any legitimate view of it, no reasonable inference can be drawn therefrom which will support a verdict other than one way. Then, the motion for a nonsuit or the direction of a verdict requires that disposition of the case, as a matter of right, which implies a judicial duty to grant it. Such disposition by no means trenches on the province of the jury, but is the exercise of a judicial function, essential to the due administration of justice.”

It is clearly evident that the exercise by the court of the authority to make such a determination when properly called upon to do so is of the very essence of judicial power; that is, the power to determine under the law the rights of parties...