Higgins v. Stang

Vinje, C. J. The case is an important one and necessarily a great deal of evidence was taken. It will not, however, become necessary to review much of the testimony or to discuss any but procedural errors. We conclude that the case must be reversed because it shows either perversity or such a lack of understanding on the part of the jury as to make it certain the defendants have not had a fair trial. The .remarks of counsel to the jurors as to damages are so prejudicial,.and such prejudice is so clearly reflected in the amount of'damages assessed, that the judgment must be set aside. But the main ground upon which we must reverse the judg [502] ment is the error of the court in instructing the jury on the subject of false swearing. The testimony shows conclusively that the truck which plaintiff’s driver ran into was standing on the south side of the middle line of the highway, either at or near the center of the concrete, or, as defendants claimed, with only the left or north wheels of the truck standing on the concrete and the south or right wheels of the truck standing out near the edge of the graveled shoulder. It is clearly established that the truck was equipped with a red tail light that could be seen for several hundred jieet, and it is also clearly established that the driver of an automobile coming from the west could see the truck for a distance of several hundred feet. Plaintiff’s testimony is to the effect that the driver was proceeding eastward at a speed not exceeding twenty miles per hour. That he ran into the rear end of the truck is unquestioned. The jury found that he was not guilty of any negligence in the management and operation of his car. They did find, however, that he failed to keep a proper lookout, but that such failure was not the proximate cause of the injury. It needs but a statement of these facts to show that if true the jury was perverse in its answers, especially in failing to find that the failure to keep a proper lookout was not a proximate cause of the accident. It is true the court corrected these findings, but they nevertheless show the attitude of the jury towards the parties in the case. The testimony as to the speed of plaintiff’s automobile at the time of the collision varies from fifteen to fifty or more miles per hour. We refer to this variance in the testimony to show what effect the court’s charge to the jury as to false swearing may possibly have had upon the jury. On the subject of false swearing the court instructed the jury as follows: “If you should find from a careful consideration of the testimony in this case that any of the witnesses who have [503] testified have sworn falsely and that their testimony has not been corroborated by other testimony, you may disregard all the testimony that such witness submitted.” Counsel for appellants point out the errors of this instruction as follows: “(a) The witness must have wilfully sworn falsely to come within the ruling; (b) the wilfully false testimony must be in relation to a material matter; (c) the corroborating evidence that may except one from the operation of the rule must be credible; (d) the discredit, when a case comes within the rule, is not of all of the testimony of such witness submitted, but only of the testimony not corroborated by other credible evidence.” • In view of the mass of disputed testimony with reference to where the truck stood when it was struck by the automobile and as to the speed of the automobile and its position upon the highway, we deem that this instruction was not only erroneous but prejudicial to the defense. It permitted the jury to select just such testimony as it saw fit, irrespective of the rules of law applicable to the credibility of testimony. One of the counsel for the plaintiff, in arguing the question of damages to the jury, said: “Take all the money that financed the great World War; take all the gold and finances in all of the banks of the world and pile it up and lay it at the feet of Mr. Higgins and offer him, and it would not compensate him for the injuries he sustained.” Upon objection being made to this line of argument the court said: “I will instruct all of the attorneys who are about to argue to the jury to confine themselves to the facts that are germane to the case, and the jury knows what the testimony is and are not to consider any arguments made by any of the attorneys, including the present one, where they go outside of the evidence offered on the trial of the case.” [504] This was not such a ruling upon the arguments made as defendants were entitled to. The court should have expressly instructed the jury that the remarks were not proper and that they should disregard them, and it is questionable if even then the error would have been cured. Taylor v. Chicago & N. W. R. Co. 103 Wis. 27, 79 N. W. 17. In view of an assessment of $14,000 damages for personal injuries, we cannot say that the prejudicial effect of the argument of counsel is not reflected in the assessment of damages. We forbear to speak more in detail upon this question, as upon a retrial the evidence will undoubtedly be different than what it was in the past trial, at least a great deal of time will have elapsed since the testimony was taken on the first trial, which showed that the results of the injury were problematical, depending upon what medical relief would effect as time progressed. By the Court. — Judgment reversed, and cause remanded for a new trial.