Mayer v. Milwaukee Street Railway Co.

Winslow, J. It is manifest that the judgment is sustained by findings of the special verdict, and examination of the record shows that there was sufficient evidence to sustain the findings. Therefore, unless error occurred in the rulings upon the trial, the judgment must be sustained. It is claimed by defendant that testimony tending to show the deposit of piles of snow by the defendant’s employees in other places than that where the accident occurred was erroneously admitted. Doubtless, the testimony as to such deposit of snow should be limited to the immediate vicinity of the place of the accident. The fact that snow was piled by the employees at other places is not proof that they piled it at the place of the accident, and such was evidently the view of the trial judge, as he several times ruled that such testimony must be confined to the place of the accident. It is true that one witness, who lived in the immediate vicinity, testified to having seen snow piled in several different places about the intersection of Third street and Green Bay avenue, among others at the exact place in question, and a motion to strike out the entire answer was overruled; but 'this motion was evidently too broad in its scope, as the answer, [526] so far as it pertained to the place in question, was certainly competent. On examination of the testimony of all the witnesses who testified upon this point, we think it fairly appears that the testimony was practically confined to the place of accident or its immediate vicinity. Two plats were introduced in evidence, showing the intersection of the two streets and the location of the main and switch tracks, one being introduced by the plaintiff, and one by the defendant. It appears that the plaintiff’s plat was not quite accurate in its representation of the places where the switch tracks joined the main track, and the reception of this inaccurate plat in evidence is alleged as error. The inaccuracy in this regard is not disputed, but, as the jury had viewed the premises, and as it does not appear that such inaccuracy could have any prejudicial effect on the determination of the issues presented, there was no error committed. It is said that it was error to submit to the jury the sixth,, seventh, and eighth questions of the special verdict, for the reason that they presuppose the existence of a pile of snow in Green Bay avenue, which was a controverted question. The fact seems to have been very conclusively proven that there was a pile of snow at the place in question at the time of the accident; but even if there were substantial controversy upon the point, we still think there was no prejudicial error in the form of these questions, because the jury had been previously told, in substance, that if they answered the second question in the negative,— that is, that the proximate cause of the injury was not a pile of snow,— they need not answer the remaining questions. Thus the jury were quite plainly told that the existence of the pile of snow was a question for them to settle, and which, if settled in the negative, was decisive of the case. Ih the closing argument the plaintiff’s counsel used the-following language, which was excepted to by the defend [527] ant: “Give the plaintiff such snm — I started to say such; sum as 'would he a punishment, hut I don’t say it; I take it all hack.” The remark was improper, hut the attention of the court does not seem to have been called to it in any way, nor was there any ruling upon it, nor request to make a ruling. Furthermore the damages recovered were very moderate, considering the serious nature of the plaintiff’s injuries. Under these circumstances there is no error. Heucke v. Milwaukee City R. Co. 69 Wis. 401. By the Court.— Judgment affirmed.