Hewitt v. Southern Wisconsin Railway Co.

MARSHALL, J. There is no complaint of the manner of submitting the case to the jury, either as to questions or instructions. The sole complaints were that there was no evidence of actionable negligence and was conclusive evidence of contributory negligence. Whether there is room in the evidence in any particular case for reasonably different conclusions as to facts, is often not an easy question to solve. That is emphatically so from the point of view of the appellate court which has only the benefit of a printed history of the trial. Kecause of the difficulty being much less from the point of view of the trial judge, who has the benefit of personal observation of the witnesses while testifying and of thus placing himself in the very atmosphere, so to speak, which environed and characterized the controverted occurrence, in general, reasonable doubts arising from the record are resolved in favor of the initial determination. So the rule has become firmly settled as part of the unwritten law tffat a trial court’s decision as to whether evidence presents a jury question will not be disturbed on appeal unless it appears to be clearly wrong, after giving due heed to the special reasons why it may be right. Under such rule the case against a decision must, necessarily, be pretty conclu [314] sive to answer to the call for the certainty involved in the expression “clearly wrong.” Where the evidence in a case raises a jury question and the trial court has refused to exercise its discretion to grant a new trial, the jury solution is conclusive. If it happens to be wrong in fact, it is, nevertheless, right in law. Judicial remedies must end somewhere and wise public policy places the finality at this point, and it is useless to indulge in even the hope, that settled rules will be deviated from to suit a particular case. The foregoing observations are, made to show that appellant, in such a case as this, however much he may regard the judgment against him as unjust, is quite remediless, even though the court, as an original matter, might, in a more or less degree, share his view. Here we are unable to see that clearness of error requisite to justify reversing the initial decision that reasonable conflicting inferences arise from the evidence. The special circumstances, obvious to the conductor, characterizing the situation when he signaled for the start; might well, in the judgment of the jury, have suggested that some such thing might, which in fact did, happen. The evidence must be viewed in the light of the duty to exercise the highest degree of care for the safety of passengers reasonably to be expected from human vigilance and foresight in view of the mode and character of the( conveyance adopted, and consistent with the practical operation of the business. Wanzer v. Chippewa Valley E. R. Co. 108 Wis. 319, 84 N. W. 423. The particular conduct which would satisfy the rule stated under some circumstances, manifestly might not under others. In the particular instance, because of the obvious difficulties the respondent had to contend with, the jury had reasonable ground to conclude that the conductor, instead of endeavoring by a quick start of the car to immediately make up for the short delay caused by her movements, should have been considerate of her somewhat helpless situation; that he [315] .¿should have taken her by the arm at the instant the ear started, or motioned her forward and afforded her an instant of time to prepare for the shock which was imminent, or at least cautioned her, in view of the rather unusual start which the jury had fair ground to believe was intentionally made, to he on her guard against being disturbed by the sudden movement. If respondent was entirely unprepared to resist the shock, as counsel for appellant insist, it must have been quite obvious to the conductor, and, inasmuch as she had no time for delib-. eration and hardly time to mentally decide upon, or physically execute any movement for self-protection, and her mind was wholly occupied, as the conductor must, or ought to have observed, in thinking of her two charges, her package of merchandise, and of rescuing the money from her glove to pay her fare, there does not seem to be any fair ground for a decision that the jury were entirely unwarranted in acquitting her of the charge of contributory negligence. There is no need of extending this opinion by further stating and analyzing the evidence in detail. The governing principle, as before suggested, is familiar. It rules this case in favor of respondent both on the question of whether defendant was actionably negligent and whether she was guilty of contributory negligence. By the Court. — Judgment is affirmed.