Chybowski v. Bucyrus Co.

Maeshali,, J. In Faber v. C. Reiss C. Co. 124 Wis. 554, 102 N. W. 1049, it was beld that a juror may properly be interrogated upon the voir dire as to whether he is in the employ of or in any way concerned with any insurance company which is pecuniarily interested in the litigation, the examination being conducted in the presence of jurors already in the box and those not yet drawn, if thought best, and in such reasonable manner as not to place improper matters before them or suggest impropriety in the company’s connection with the case. In other words, such examination is proper so long as conducted “strictly within the right” to discover the state of mind of the juror as regards the matter in hand or any collateral matter reasonably liable to unduly influence him. The learned circuit court seems to have considered the conclusion in that case with what was said in support thereof as warranting the extraordinary proceeding detailed in the record. If there is anything in the former case suggesting the propriety of requiring counsel to state either from his place as such or from the stand as a witness, as was done here, whether an insurance company is concerned in the litigation, we are not conscious of it. It would seem that the words in the former case to the effect that the questions propounded must he to the juror and “strictly within the right” as to his status respecting the controversy in hand, by necessary implication* condemn the proceeding under consideration. The mere fact that an insurance company was concerned in the litigation was wholly immaterial. The attitude of the' court as to compelling appellant’s counsel to bear evidence in respect thereto, notwithstanding assurance of respondent’s counsel that the information sought for was wanted only as a basis for interrogating the juror, clearly gave undue importance to the insurance.company’s connection with the case since no such basis 'was necessary. It was a matter quite likely to-prejudice the jury and should, not have been adverted to at all except by questions to the particular juror under examina — 338 — tion and “strictly witbin tbe right” to discover whether any bias or basis therefor on his part existed. The pretense that it was necessary to interrogate counsel, as was done, t.o obtain a basis for such discovery should not have appealed successfully to the court. All cases, but particularly such as the one in hand, should be managed from the bench with the most scrupulous and constant regard for the existence of those mere ulterior matters liable to be referred to purposely or apparently so, in a way to improperly influence the jury. That is due to the parties, and is due as well to the jurors themselves. They have the singlé function to perform of determining the truth as to controverted issues of fact solely from the competent evidence produced in their hearing and the law as given to them by the court. When their true position, and that only, is kept before them from the beginning to the end of the trial, and they are inspired by the guiding hand of the judge to win distinction by putting aside every influence except the evidence and the law proper for their consideration, the jury system is -commonly vindicated as being the best that has been designed -or is designable for the discovery of truth in the administration of justice. The proceeding under consideration was a wide departure from that standard. It was wholly unnecessary to the ostensible purpose thereof. The effort to interrogate counsel, at the very outset should have been firmly in-pressed and the attention of the interrogator directed to the only legitimate subject in hand: that of determining whether the juror was in any wise concerned in any insurance company interested in the litigation. The discovery in that regard might well have been obtained by one or two proper questions not calculated to unduly suggest the fact of the company’s connection with the case. In addition to- the foregoing the proper solution of the question as to whether the evidence warranted the finding that ■ the steam hammer was defective and thereby it was caused to — 339 — malee two strokes when only one was intended, producing tbe injury complained of, so effectually disposes of this appeal, and under tbe present practice, in view of tbe record, of tbe litigation as well, tbat it does not seem advisable to discuss any other matter. We will'consider sucb additional matter briefly. Nature’s unchanging and unchangeable laws and tbe unvarying and invariable principles of mechanics cannot be turned aside by the verdict of a jury, even if the matter concerning the same is given into their hands accompanied by a judicial suggestion that there may be reasonable doubt in respect thereto. This court has often spoken decisively on that subject for tbe guidance of trial courts, as well as for tbe purposes of tbe particular cases in which tbe matter was involved. Vorbrich v. Geuder & P. Mfg. Co. 96 Wis. 277, 71 N. W. 434; Montanye v. Northern Elec. Mfg. Co., ante, p. 22, 105 N. W. 1043. When tbe evidence in relation to a controverted question of fact on tbe one side accords with what must necessarily have been the case under given undisputed and indisputable circumstances, and tbe evidence on tbe other side is opposed thereto, obviously there is no room for conflicting reasonable inferences, consequently no question for solution by a jury. Whether sucb situation does or does not exist in any case is a matter for tbe court to determine. It cannot escape the re: sponsibility of solving it and doing so considerately. Such a situation often presents the most severe test of judicial courage which trial courts are subjected to. Failure to satisfy such test in all respects gives ground, unjustly it seems, for much of tbe criticism often beard of tbe jury system. Tbe duty devolves upon tbe presiding judge, in every jury trial, before giving tbe controversy over to tbe jury for a determination, of deciding whether, under the evidence and tbe law applicable thereto, there can fairly be said to be reasonable inferences favoring one side as well as sucb inferences favoring — 340 — the other, so that the truth of the matter may be with the former or with the latter. It is easy to see that in case of a decision in the affirmative, when the conclusion clearly should be in the negative, the jury must naturally regard such decision as suggesting that their function as to determining a conflict between reasonable inferences is necessarily, called into action. They take the case, in such circumstances, at the hands of the court accompanied by a decision, in advance by paramount authority, that the evidence, in view of the law applicable thereto, will sustain a verdict either way, according as the same may be viewed by them. Upon their going wrong, harsh criticism thereof.and of the jury system itself, is quite out of place. The fault- is not with the system, but with its administration. Musbach v. Wisconsin C. Co. 108 Wis. 57, 69, 84 N. W. 36. Where the evidence is sufficient only to give rise to mere conjecture in favor of the plaintiff,' or to suggest merely a possibility of the truth being as claimed by him — Hyer v. Janesville, 101 Wis. 371, 77 N. W. 729; Sorenson v. Menasha P. & P. Co. 56 Wis. 338, 14 N. W. 446; Agen v. Metropolitan L. Ins. Co. 105 Wis. 217, 225, 80 N. W. 1020; Spencer v. C., M. & St. P. R. Co. 105 Wis. 311, 81 N. W. 407; Stafford v. Chippewa Valley E. R. Co. 110 Wis. 331, 345, 85 N. W. 1036 — or the evidence in his favor is contrary to all reasonable probabilities, the jury are placed in a false-position by being directed to determine upon which side are the major and controlling probabilities. The court in such circumstances, without a motion in that regard, should apply the law thereto and dispose of the litigation accordingly. Refusal in that regard, in face of a proper motion invoking judicial action, is no less than the denial of a right. FinJcelsion v. O., M. & St. P. B. Go. 94 Wis. 270, 68 N. W. 1005; Caw-ley v. La Crosse City B. Go. 101 Wis. 145, 77 N. W. 179; Baxter v. O. & N. W. B. Go. 104 Wis. 307, 330, 80 N. W. 644; Optenherg v. Shelton, 109 Wis. 241, 85 N. W. 356. We — 341 — are not unmindful that error now and then in respect to such matters is consistent with the most careful judicial administration. "What has been said has reference particularly to those extreme cases, of which this is one, which are too plain to admit of any reasonable controversy. It requires but the most ordinary appreciation of the operation of a machine, — combining a block of steel, weighing 1,250 potmds, more or less, 'for use as a hammer, suspended above an anvil bed by a piston rod having its upper end armed with a piston head inclosed in a cylinder in the ordinary way for utilizing the power of steam under compression, the whole appliance being erected in a vertical position with connections so as to permit of the piston head being made to oscillate, •only by the necessary valves controlling the application of •steam being operated by hand power as to each movement of the piston, as in this ease; that is, such appliance not having any automatic device to cause the movement of the piston head in one direction to reverse the application of the steam pressure so as to produce a return motion — to perceive that a stroke of the hammer without the appropriate precedent movement of the controlling device is out of the question. It seems perfectly obvious that every movement of the piston head must necessarily be preceded by such appropriate shifting of the controlling device by the person in charge thereof. It follows that these must be regarded as verities respecting the case in hand: When the hammer-boy, as the one attending the machine was called, turned on the steam and raised the controlling lever so as to open the inlet below the piston head and the exhaust above, the hammer necessarily was elevated to a position of readiness for a strike. It could not go back against the steam pressure. It necessarily remained in the position of readiness for a strike, the steam pressure being continued, till the controlling lever was put down opening the exhaust below the cylinder’head. After a blow was struck the hammer could not rebound against steam pressure ap — 342 — plied above tbe piston bead to accelerate tbe downward motion, in case of sucb acceleration. In case of tbe steam being cut off instantly upon tbe blow being delivered there could yet be no return motion to a position requisite'for a second strike. Tbe hammer would necessarily remain down by its own weight and by tbe steam pressure above tbe piston bead as well till sucb pressure was reduced by condensation. Tbe hammer could not go back for a second strike except in response to a reverse motion of tbe controlling device, opening tbe exhaust above tbe cylinder bead and tbe inlet below. Tbe testimony of a witness to tbe contrary of this only evidenced ignorance or something worse. Any amount of sucb contrary evidence could not raise any conflict for solution by a jury.Reasonable doubt respecting tbe truth of a matter arrived at by methods of positive demonstration cannot be created by any amount of mere speculation or conjecture, or even positive contrary evidence from tbe mouths of witnesses. Proof that tbe machine worked perfectly both before and after tbe accident, which was very satisfactorily made, cast tbe burden on plaintiff to show that tbe alleged second strike of tbe hammer, if one occurred, was caused by a defect in tbe appliance. In this we put aside tbe evidence as to tbe double and uncontrollable action of tbe hammer as not worthy of belief. In any event it was efficiently rebutted, so far as sucb double motion of tbe hammer suggesting that it was the result of any defect in tbe machine. Vorbrich v. Geuder & P. Mfg. Co. 96 Wis. 277, 71 N. W. 434. There was no attempt to lift tbe burden thus cast on respondent, except by proof that tbe alleged second motion of tbe hammer might have been caused by a leak of steam at tbe entrance of tbe piston rod into tbe cylinder or by water in tbe cylinder. There was no proof of a definite character that any sucb leak existed or that there was water in tbe cylinder. Moreover, it is readily seen that if there were sucb a leak it could not possibly have caused tbe alleged undesired motion of the hammer. Tbe entrance — 343 — of the piston rod into the cylinder was below the piston head. Such a leak could not have been active except when the hammer was up and the steam pressure was on, and then the effect could only have been a mere waste of energy of a trifling character, necessarily supplied as fast as it occurred in case the steam was on, and otherwise it could only have permitted of a slow descent of the hammer as the steam escaped. In no event could it have caused the cylinder head to rise, lifting the hammer, or have caused any efficient motion of the hammer whatever. The suggestion of water in the cylinder is likewise hardly worthy of consideration. Water in the cylinder below the piston head, in case of any accumulation thereof at that point, would necessarily be forced out by the downward motion of the piston head. Water could have accumulated above the cylinder head only by condensation of thé steam which caused the downward motion or a leaky valve, and such-accumulation, if one occurred, could not in any event have caused a reverse motion or any motion of the hammer. Neither of the suggested explanations of the alleged double motion of the hammer was supported by anything better than baseless conjecture, as it seems 1o us. This is in accordance with the evidence and is self-evident. By the Court. — The judgment appealed from is reversed, and the cause remanded with directions to grant the motion made in appellant’s behalf for a correction of the verdict, and for judgment in his favor dismissing the action with costs.