McCoy v. Milwaukee Steeet Railway Co.

Oassoday, J. The car of the defendant, which it is claimed ran upon, the plaintiff, was at the time of the accident going north on West Water street towards Grand avenue. According to the plaintiff’s testimony the accident occurred somewhere between Olybourn and Sycamore streets. According to the defendant’s witnesses, it occurred between Fowler and Olybourn streets. It is undisputed that the accident occurred about half past 6 o’clock on the evening of April 27,1891, in broad daylight; that the plaintiff was at the time about eighteen years of age, riding a large bay horse, blind in one eye, called “Highflyer,” because he was “long-legged and skinny;” that said horse [217] bad been used as a wagon horse, and that the plaintiff had never ridden him before, and did not know as others had; that the boy had been riding the . horse in the vicinity of the car from as far south as Reed street; that after crossing the bridge the car got ahead of the boy on the horse; and that the car was full, or nearly full, of passengers. The theory that the horse fell at or near the track anywhere ahead of the car is based entirely upon the plaintiff’s testimony alone. That testimony was flatly contradicted by four disinterested witnesses, riding upon the car, including the driver, who had ceased to be in the employ of the defendant. These four witnesses all testify positively that the horse fell by the side of the car, and near the middle or reár end. They were each and all in a position to know whether the horse fell in front of the car or not, and the testimony of each of them is irreconcilably in conflict with the testimony of the plaintiff on the vital question in the case. It is true the learned trial judge left it to the jury to determine which of the two accounts of the transaction was the true one; and it is manifest that they must have found that the plaintiff’s account was the true one, notwithstanding it is against the clear preponderance and weight of the evidence, besides being in some respects incredible. If the horse actually fell in front of the car, and the plaintiff was then run upon by the car, as claimed, the occurrence would not only have startled the numerous bystanders in the car, but also the numerous others in the street; and consequently there would have been no difficulty in finding plenty of witnesses to corroborate the plaintiff’s version. In certain classes of cases jurors may be so impregnated with sympathy for the one party and prejudice against the other as to inadvertently disregard the responsibility imposed by the oath administered; and this may have been stimulated by a portion of the charge, to the effect that “ the weight of testimony does not depend upon the num [218] ber of witnesses.” From this the jury may have inferred that the court regarded the plaintiff’s uncorroborated testimony as weighty as that of all the witnesses on the part of the defendant. While the weight of testimony does not necessarily depend upon the number of witnesses, yet, where the witnesses are of equal credibility, it may undoubtedly be increased by the number of witnesses. Of course the weight and credibility are for the jury. Bierbach v. Goodyear R. Co. 54 Wis. 213; Shekey v. Eldredge, 71 Wis. 538. Where the testimony on the one side clearly outweighs the testimony on the other the verdict should be accordingly. Spensley v. Lancashire Ins. Co. 62 Wis. 452; Telford v. Frost, 76 Wis. 176. In the ,case at bar there is nothing tending to discredit any of the defendant’s witnesses, whereas the plaintiff was seeking to recover upon his own testimony. The court was specially asked to set aside the verdict on the ground that it is contrary to the weight and preponderance of the evidence. Under all the circumstances of this case, we think this motion should have been granted, and that it was an abuse of discretion not to grant the same. Beveridge v. Welch, 7 Wis. 465; Jones v. C. & N. W. R. Co. 49 Wis. 352; Allen v. Milwaukee, 72 Wis. 182. Besides, we think it was error for the court to charge the jury to the effect that there was no claim or pretense on the part of the defendant that the plaintiff was guilty of contributory negligence, so that, if the jury came to the conclusion that the plaintiff’s version of the transaction was the correct one, then the only thing for them to inquire after was whether the driver was guilty of negligence. As indicated, the answer alleged contributory negligence; and we do not think that issue should have been taken from the jury, even on the plaintiff’s theory of the facts. By the Court.— The judgment of the superior court of Milwaukee county is reversed, and the cause is remanded for a new trial.