Flaherty v. Harrison

Maeshall, J. The question for decision on this appeal is, Does the evidence warrant the verdict and the judgment, under the rule that, if there is any credible evidence in that regard, which, if believed, is sufficient therefor, the ruling of the trial court, refusing to grant a new trial for insufficiency of evidence, will not be disturbed on appeal? It is apparent at the outset that there was an entire failure to establish the facts pleaded to show actionable negligence. While it is alleged that plaintiff was driving his team across the street railway track at the time of the injury, the evidence shows that the team became unmanageable while standing in a safe position, and jumped forward across the track immediately ahead of the car, so that it was impracticable to stop the car after the team started. The complaint states that the plaintiff proceeded onto the track without observing the coming car, because the motorman failed-to signal the approach by sounding his car bell. [563] The evidence shows that the motorman sounded the car bell constantly while passing over a distance of about 100 feet in approaching the crossing, and the negligence relied on to support the verdict is not failure to sound the bell, but sounding it too much, as the car approached the crossing,.so' that the noise of the bell, concurring with the noise and appearance of the rapidly approaching car, frightened the team, and caused them to become unmanageable and jump onto the track. There is not a scintilla 'of evidence that the horses, by their appearance, indicated danger of their running away or becoming unmanageable on account of the approach of the car and the noises incident thereto, up to the very time they became unmanageable and jumped forward. Aside from the evidence of plaintiff that the car was going at a speed of twenty miles an hour, there is no fact alleged in the complaint showing negligence that is supported by evidence, and it cannot be said that plaintiff’s testimony as .to the speed of the car was credible in the face of the undisputed evidence that neither the car nor the wagon was injured or showed any evidence of the collision, and that the car was stopped as soon as practicable after the collision if it was going at an ordinary rate of speed. Where all reasonable probabilities from facts unquestionably established by the evidence are on one side of a controversy, the testimony of an interested party to the contrary does not create a conflict of evidence requiring such controversy to be submitted to and determined by a jury, or, if submitted, support their determination, if contrary to all such reasonable probabilities. Badger v. Janesville Cotton Mills, 95 Wis. 599. It follows that there was no evidence to warrant a jury in finding that the car was going at a negligent rate of speed as it approached the crossing, or for submitting that question to a jury. Further, in face of the claim of negligence in the com [564] plaint that the motorman ran the car into plaintiff’s wagon and overturned it, without giving any signal of the approach of the car, there was no warrant for submitting the case to the jury on the claim that there was a negligent ringing of the car bell which caused the horses to become frightened and unmanageable, especially when there was no evidence that the horses showed symptoms of fright till the instant they jumped ahead of the car. Looking at the case in the light of the pleadings and the evidence, it is considered that there was no evidence that the motorman was negligent, and certainly no evidence of actionable negligence, in that there was no room for a reasonable inference from the evidence and circumstances established .thereby that the jumping forward of the team was a natural and probable result of the conduct of the motorman, and that, as a person of ordinary intelligence and prudence, in the light of attending circumstances, he ought reasonably to have anticipated such result, or some injury to plaintiff, by reason of such conduct. Deisenrieter v. Kraus-Merkel Malting Co. 91 Wis. 279. Before that essential test of actionable negligence the plaintiff’s case seems to fail so completely as to lead to the conclusion that it was entirely overlooked by the trial court. , The case of Eastwood v. La Crosse City R. Co. 94 Wis. 163, is a far stronger case to sustain a claim of actionable negligence than the one before us, and this court there decided that no such negligence was disclosed by the evidence. The circumstances were that the horses and conveyance were in a place of safety as the car approached; that though exhibiting some evidence of uneasiness, they were under the control of the driver till just as the car was passing them. They then suddenly jumped around and backed the sleigh onto the track, causing the injury complained of. There was no interval between the instant of the backing of the horses and the collision, sufficient to stop the car. The [565] claim w7as made that the motorman should have observed the uneasiness of the horses and applied the brake to the car so as to control its motion with reference to any danger that existed of the horses’ placing themselves or the sleigh in its path. In deciding the case the court, by Mr. Justice "WiNslow, said, in substance, that a motorman is not required to apply the brakes whenever he sees a horse in the street, along the track, showing some symptoms of apprehension; to demand that a street car must be slowed up or stopped every time a horse or a team displays signs of uneasiness, would render it impossible for street-car companies to perform their duty to the public by furnishing speedy transportation of passengers. All that was said in the opinion on the line indicated applies most strongly to the facts of this case, because there is no evidence here of the fright of the team till the instant they jumped onto the track, and the plaintiff testified that they were under his control till that instant. The ruling in Bishop v. Belle City St. R. Co. 92 Wis. 189, is also decisive of this case, though the facts there do not make its application quite, as well defined as that of Eastwood v. La Crosse City R. Co., supra. Authorities as to the frightening of a horse by a street oar are collected in a note to Doster v. Charlotte St. B. Co. (117 N. C. 651), in 34 L. R. A. 481 — Rep. It follows from the foregoing that the defendant’s motion, made at the close of the evidence, for the direction of a verdict should have been granted, and that the motion to set aside the verdict as contrary to the evidence should have been granted. By the Court.— The judgment of the circuit ■ court is reversed, and the cause remanded for a new trial.