Welty v. Lake Superior Terminal & Transfer Railway Co.

Pinney, J. The principal matter presented involves questions of fact peculiarly appropriate for the consideration and determination of a jury. It is urged that there was no sufficient evidence that the defendant bad been at fault, or was guilty of any negligence which was the proximate cause of the plaintiff’s injury. It was claimed that the semaphore, by a fall from which the plaintiff sustained his injury, was negligently and improperly constructed, in that the iron rungs by which the operator of it could ascend the semaphore to attend to the practical operation and working of the same, had not been safely and securely driven into the pole, so that the operator could go up the pole and perform his duties in safety; and that, in consequence, one of the rungs slipped or came out, so that the plaintiff, when in the discharge of his duties as such semaphorist, and without fault or neglect on his part, was violently thrown,’ while near the top of such signal or semaphore pole, to the ground, and received his injuries, which the evidence shows were serious. The credibility of the plaintiff as a witness in his own behalf was assailed, and it was alleged that the evidence was extremely improbable, and that he was unworthy of credit. The evidence, as contained in the record, seems quite clear and satisfactory to show that the plaintiff received the injury of which he complains at the time and. place stated by him, and there is evidence in corroboration of his claim as to the manner in which it occurred. The nature and character of the injury is shown by the evidence of his physician who was called to attend him the next day. The testimony of the physician shows that the injury was [141] of a serious and dangerous character, and there were other facts and circumstances tending to sustain the plaintiff’s version of the occurrence. There is no apparent reason for believing that his injury was self-inflicted or simulated, or that it was not received in the regular discharge of his duty, while in the service of the defendant as a semaphorist, at the place indicated in the testimony. The case has been tried twice, and the last trial was apparently a thorough and careful one; and it may be remarked that the findings of the jury upon which the judgment rests were satisfactory to the trial judge, for the defendant’s motion to set aside the verdict and for a new trial on the ground that it was contrary to, and not sustained by, the evidence, was denied. The credibility of the plaintiff as a witness in his own behalf was a question peculiarly for the jury, and no case is made upon which the defendant can rightly or fairly insist that the plaintiff, as a matter of law, was not a credible witness, or that the evidence, and the inferences that may properly be drawn from it, does not, when fairly considered, support the verdict. The defendant’s witnesses testified that the iron rungs were driven into the pole, where holes had been bored with a bit, before the pole was raised, and the plaintiff’s witnesses testified that the rungs were driven in after it was brought to the ground and raised; affording ground for the contention that the rung in question had not been driven in securely or had failed to receive proper attention. The plaintiff testified that in about three quarters of an hour after the injury he drove this rung in again securely; and it is assumed that if, on this point, he testified truly, he destroyed the means of corroboration, and, if falsely, he put it out of human power to contradict him. "We fail to see anything in the evidence to warrant this conclusion. Certainly there is no evidence that in reason, would justify the conclusion that upon receiving his injury, in the darkness and storm of the night, he purposely attempted to [142] suppress or destroy the evidence to show how his injury occurred. The court instructed the jury that: “ The fact, if it be a fact, that the rung came out in the manner testified to by the plaintiff, is presumptive of the want of ordinary care on the part of defendant. That is to say, if there, were no other evidence in the ease of how the sema/phore was constructed,— as to the manner and degree of care exercised in putting in the rungs,— we would have to conclude that it was imperfectly constructed from the fact of its being loose when plaintiff took hold of it, if in fact it was loose, as he testifies.” As thus limited and qualified, we do not see how it can be said that the instruction was either beneficial to the plaintiff or prejudicial to the defendant, or that it was reversible error. The questions before the jury were of fact, not depending on legal judgment, and were fairly left to them. Complaint is made that, although the court correctly instructed the jury that, if they found from the evidence that the testimony of the plaintiff relative to the manner of his falling from the semaphore pole was against all reasonable probabilities, then, and in that case, they would not be warranted in finding that he fell from the pole and received the injuries of which he complains, and they must, therefore, answer the first question of the special verdict “ No,” thus leaving the question to the judgment of the jury as to the reasonable probabilities, yet, in the general charge, the jury had been told that: “ In passing upon the testimony of a witness, you are not to accept it as true simply because not contradicted by other witnesses. If the things testified to are so unnatural or unreasonable that your good sense revolts against them, you may reject such testimony as untrue.” 1 It is not pointed out in what manner the defendant was prej [143] udiced or injuriously affected by the alleged erroneous instructions. They do not invoke any clear, definite rule as a guide to the jury. They refer to the conception the jury may have of “reasonable probabilities,” — of what is unnatural or unreasonable,— so as to make the good sense of the jury revolt at it. The court refused to instruct the jury at the defendant’s request that, if the plaintiff had equal means and opportunity for ascertaining the defect, if they found there was a defect, in the semaphore of which he complains, as the defendant, then, in that case, the plaintiff cannot recover in this action. In view of all the evidence, and the fact that the defendant constructed and erected the semaphore, we think the refusal was not error. It was the duty of the defendant to provide a reasonably safe place for the plaintiff to render his services, and to construct the semaphores so that they would be reasonably safe for the plaintiff’s use. Cadden v. Am. Steel Barge Co. 88 Wis. 410, 418, 420. The foreman of the defendant, Gallagher, and his assistants, under and by whom the semaphore was constructed, were not fellow-servants of the plaintiff. The defendant was bound to perform its duty. The plaintiff did not take the risk of the carelessness of those who were selected by the defendant and undertook to do its duty, even though they were servants of the same master. Lanning v. N. Y. C. R. Co. 49 N. Y. 521; Ford v. Fitchburg R. Co. 110 Mass. 241; Hough v. Railway Co. 100 U. S. 213-219. The case, in brief, is that there was evidence sufficient to take the case to the jury upon the question of the negligence of the defendant in not properly constructing the semaphore, which was an appliance provided for the plaintiff in performing his services as semaphorist at the place in question for the defendant, and in not providing a safe and sufficient one upon which the plaintiff could so render his services. Here the semaphore was. constructed by the defendant itself. [144] There was evidence strongly tending to show that it was-defective and insufficient, and, indeed, the result clearly shows it, and that the plaintiff sustained his injuries in consequence. At the commencement of the trial a motion was made by the defendant’s counsel to quash the array of jurors upon the ground that they were drawn by the clerk of the court from the list of names furnished by members of the county board, and that the law authorizing that method was repealed three days after such drawing, so that the manner of obtaining jurors at the time of the commencement of the term and of the trial was regulated by a subsequent act. Oh. 380, Laws of 1897 (secs. 2533a-2533e, Stats. 1898). The challenge was overruled. The determination of the court overruling the challenge to the array of jurors was correct. "When jurors have been drawn and designated according to law to serve at a term of court, a mere change in the method of drawing jurors thereafter made wiil not affect those already drawn, but they will continue, notwithstanding such change in the law, legal jurors for the'term, unless excused or discharged by the court. Ray v. Lake Superior T. & T. R. Co. 99 Wis. 617. We do not think the record shows any error of which the defendant can rightly complain, and that for the reasons stated the judgment is correct and should be affirmed. By the Court.— The judgment of the circuit court is affirmed.