Johnson v. Superior Rapid Transit Railway Co.

Cassoday, 0. J. 1. The case of Mrs. Little, mentioned ini the foregoing statement, was before this court, and reversed for errors. Little v. Superior R. T. R. Co. 88 Wis. 402. It was there, in effect, held that the portion of the charge to the effect that the plaintiff could recover, even in a case where both parties were guilty of a want of ordinary care, was error. The same error is present in this case, where the court charged the jury to the effect that, even if the plaintiff was. chargeable with a lack of ordinary care, still the plaintiff should recover, if “ the defendant’s motorman saw the plaintiff approaching the track unconscious of his coming, and he then, seeing her in that attitude, did not exercise ordinary care for her safetjr; ” and this was put on the ground that the motorman’s negligence, in that event, “ was, so to speak,, supervening. It is, in a sense, negligence, after negligence, and it is the proximate cause of the injury.” Such portions of the charge were substantial repetitions of what -was contained in a former portion of the charge. True, the facts detailed in the 'clause of the charge quoted might possibly justify the jury in finding that the motorman was guilty of gross negligence or recklessness; and the court followed the portion of the charge mentioned by charging that “ if the plaintiff was chargeable with lack of ordinary care, and still the motorman is chargeable with reckless negligence, and that reckless negligence was the proximate cause of the in-, jury, still your verdict should be for the plaintiff.” 2. The court also charged the jury: “ In passing upon the question of the credibility of witnesses, you will always consider, of course, any motives that a witness may have for testifying the way he does. The temptations to perjury, — . you should always consider that. You will always consider,, of course, the character of the witnesses, so far as you know [237] ■it, as bearing upon the question whether a witness would be truthful and reliable or not. My observation is that pretty ■good persons sometimes lie, and that pretty bad persons sometimes tell the truth” In determining the credibility of the several witnesses, each juryman was thus directed to take into consideration his own hnowledge of the witness or witnesses; and, in addition to that, the judge instructed the jury as to what his own observations had been in regard to the truthfulness of good and bad persons. As this court has repeatedly held: “ Every party to an action at law in this state has a right to insist upon a verdict or finding based upon the law and the evidence in the case, and not, in the ■absence of evidence, upon mere inference, conjecture, and personal experience.” Sherman v. Menominee H. L. Co. 77 Wis. 22; Little v. Superior R. T. R. Co. 88 Wis. 408. The error mentioned was not cured by the court telling the jury, in effect, that nothing was to be found “ by conjecture,” but •that their verdict “must be based upon evidence” and facts inferable from the proofs. 3. On the subject of contributory negligence, the court , 'charged the jury to the effect that the plaintiff had the right to rely upon Mrs. Jones, who was driving the horse, to exercise ordinary care to avoid the danger; that if Mrs. Jones looked, that was enough to answer the purpose; that both did not have to look; that they must regard the plaintiff just exactly as if she had hold of the reins herself and had done just as Mrs. Jones did.” We cannot sanction such rulings. It was equivalent to saying to the jury that, even though the plaintiff might have avoided the injury by the . exercise of ordinary care, still she might recover if Mrs. Jones exercised ordinary care. We are not aware of any such doctrine of imputed care. The jury did not specifically find that the plaintiff was free from contributory negligence. The answer of the jury to the fifth question is merely to the effect that Mrs. Jones did not fail to exercise ordinary care [238] as to any car she bad good reason to believe to-be then approaching. In this same connection the court said to the-jury, “ I don’t think she [the plaintiff] claims to have looked.” If this was true, — • and it would seem that it was, — - then it became the duty of the court to nonsuit the plaintiff or direct a verdict in favor of the defendant. The charge is very lengthy. Numerous exceptions are-taken to it. It contains some things well calculated to excite feeling and prejudice in the jury, and to lead them away from the real issue. Only a few of them are here referred' to, as, for instance: “I have thought of this case a good; deal, gentlemen. Here is some pretty strong wrong somewhere.” The court then charges at considerable -length upon, personal injury cases generally, as follows: “ I notice, every time we come to draw a panel, the question is asked, ‘ Have-you any prejudice against personal injury actions?’ I hope not, gentlemen. I hope not. It is an unfortunate state of facts, if we have got to swear a person can’t come into court and have a fair show on a personal injury action. That is a bad state, if that is true, and it makes me out of patience, almost, to have it assumed that may be true. However, personal injury actions are many of them humbugs,— made-up. Tou want to search .them as you do any other action,— sift the wheat from the chaff; but don’t brace up and say here: cIt won’t do to give verdicts in personal injury actions-It will only encourage peoplé.’ Never say that. If you feel! there are a good many humbug actions, why, search, search the evidence. That’s right. But don’t brace up against it. If anybody here has suffered an injury, they have a right-to come into court. We have time for them, and a sufficient, punishment on them,— to put the costs on them and send them out without a verdict, if they are not entitled to one. I am not going to lose my right to-come into court and have-my wrongs redressed because my neighbor may have come-into court when he had no business to.” As was said by this239 court in another case, so we feel called upon to say of the' lengthy charge in this case: “ An opportunity for elegant discourse is always tempting to genius and ability." But. while some circumstances invite, others repel, the indulgence.. To be apt, the expression must not only be accurate but appropriate. A strict adherence to the case in hand is one' of the highest qualities of juridical discussion. Such discussion is necessarily concise, direct, and restricted, rather than: ornate. It is," moreover, cold, logical, pointed, and without superfluity.” Bradley v. Cramer, 66 Wis. 300. Injuries bystreet-ear collisions with vehicles or horses are the subject of annotation to Hicks v. Citizens’ R. Co. (124 Mo. 115) in 25 L. B. A. 508. — Eep. By the Court.— The judgment of the superior court of Douglas county is reversed, and the cause is remanded for a new trial.