Schmitt v. Milwaukee Street Railway Co.

EiNNbt, J. The instructions of the court upon what effect should be given to the evidence, in certain respects, we think, were erroneous. [198] 1. Tbe jury were instructed, in substance, that tbe testimony of “a greater number of credible witnesses whose statements are reliable, on one side, may be considered of more reliance and more worthy of confidence and trust than the testimony of a lesser number of witnesses of equal credibility.” This instruction was' misleading, particularly in relation to a transaction like the one under consideration, where often no two witnesses see it at the same moment or from the same point of view. It deals only with the question of credibility, and it left the jury in the case mentioned to determine the issue upon the mere preponderance of numbers on one side or the other, without calling their attention to the relative intelligence of the witnesses, their opportunity to observe what took place, what attention they paid to the occurrence, or their -ability to recall and state it in its details correctly. The real question was as to the credibility of the statements, and not as to the credibility •in a general sense of the witnesses. It is a matter of common experience that witnesses of equal credit often differ in regard to such transactions, by reason of the considerations mentioned; and the truth depends not so much upon the credibility of the witnesses as such, as upon their means of knowledge, time and point of observation, strength of memory, and clearness of recollection. 2. The instruction, in substance, that, “ if the jury believe .that any witness has been guilty of telling that Avhich is untrue,— of wilfully and knowingly stating a falsehood,— then the jury are at liberty to reject his entire testimony,” was erroneous. The law is very well settled that in order to authorize the jury to reject the entire testimony of a witness on the ground that he had knowingly testified falsely in the case, such false testimony must have been in relation to some material fact. Mercer v. Wright, 3 Wis. 645; Morely v. Dunbar, 24 Wis. 183. This was so held in the recent case of Little v. Superior R. T. R. Co. 88 Wis. 402, in which many authorities are cited to the same effect. [199] 3. Tbe action was for injury to the plaintiff’s person,— ■for assault and battery,— although the plaintiff did not -claim that he had sustained any particular bodily injury by reason of the act of the conductor in putting him off the •cars. The evidence shows that physical force was used in putting him off, unnecessarily as he contended, while the •defendant insists that no more force was used than was necessary. If the act was wrongful and accompanied with circumstances of insult or indignity, these facts, as well as the consequent injury to his feelings, causing humiliation or mental suffering or wounding his pride, are proper for the •consideration of the jury in fixing the amount of damages. His situation in life and reputation may have a bearing on ■this subject, rendering his injury in these respects more acute than it otherwise would be; but no allowance can be made for injury to his business or to his professional reputation. The action was not for an injury to plaintiff’s character or reputation, professional ■ or otherwise. There was no evidence of injury to his business reputation as a physician, and there was no case before the jury authorizing an award of damages to the plaintiff for injury to his reputation or professional standing. Eor injuries such as these the well-understood remedy is by action for slander or libel, and they cannot form the proper ground for an award of damages in the present action for assault and battery, or for wrongful expulsion from a street car. The facts stated in the complaint are clearly decisive of the nature of the action, and it is not affected by the peculiar prayer for damages. The instructions of the court to the jury that, in assessing the plaintiff’s damages, they might consider his •condition in life, his profession, his social relations by reason ■of his profession, and the injury to his feelings, and the injury to his reputation in the way of disgrace that has been brought upon him, and the impairment, if any, of his social standing or condition, were erroneous. These instructions [200] left the jury to consider the injury to the plaintiff’s reputation, in the way of disgrace brought upon him, and the impairment of his social standing or condition, by reason of his. expulsion from the car, as a substantive ground of damages, without limiting the award to injury to his feelings, causing humiliation or mental suffering or wounding his pride. These instructions tended to mislead the jury, and to cause them to award damages such only as could be recovered in an action for injury to the plaintiff’s character or reputation,, personal or professional. The law does not, we think, allow the assessment of damages in an action for assault and battery to proceed upon grounds such as are stated in the instructions in question. For these reasons the judgment of the superior court must be reversed. By the Oowrt.— The judgment of the superior court is reversed, and the cause remanded for a new trial.