Ralph v. Chicago & Northwestern Railway Co. , 32 Wis. 177 ( 1873 )

LYON, J.

I. Even though it be conceded that the plaintiff was not the owner of the rope in question at the time of the alleged delivery thereof to the defendant, still we think that, under the circumstances of the case, when the plaintiff paid for the rope he became the owner thereof, and of the alleged cause of action for the loss of it. Had the action been brought by the vendors, the Chicago firm, after such payment was made, proof of the payment would doubtless defeat such action. If the plaintiff cannot recover in this action, then no person can recover for the loss of the rope.

IL As to the question of delivery. On the one hand it is clearly proved that tbe plaintiff sent the witness Todd to the depot with the rope, for the purpose of shipping it to Chicago. On the other hand it satisfactorily appears that if Todd placed the rope in the freight room of the depot it remained there but a short time, and must have been taken therefrom without the knowledge of the agents or employees of the defendant. The only disputed question of fact is, Did the witness Todd place the rope in the freight room by direction of Miss Brown ? On this question we get but little aid from the surrounding circumstances. Some of these tend to support the theory that such delivery was made, while others tend, in about an equal degree, to support the opposite theory. Both theories seem • equally reasonable. The rope might have been taken from the plaintiff’s store by the witness Todd for the purpose of delivering it at the depot for shipment, and still have never been delivered. Or it might have been delivered, and yet never shipped to Chicago, and never seen by the station agent. It may have been stolen from the freight room before the return of the agent to the depot.

Hence, this disputed question of fact must be determined upon the testimony of the only two witnesses who testify directly in relation to it — the witness Todd and Miss Brown. Both appear to be credible witnesses; there is nothing in their testimony which casts discredit upon either. We must believe that they both testified to the facts as they recollected them.

Unless the testimony of Todd outweighs that of Miss Brown, the plaintiff cannot recover, because the onus probandi is with him.

The testimony of Todd is affirmative. He swears positively to the affirmative fact that he delivered the rope in the freight room of the depot by direction of Miss Brown. There is but little room in this testimony for failure of memory. He either did so, or he has probably committed perjury. The testimony of Miss Brown, although somewhat positive in form, is negative in effect. It means but little more than that she has no recollection of the transactions to which Todd testified. In her case there is much more room for failure of recollection. A single question put to her by Todd when she was otherwise, and perhaps intently, engaged about something else, and a brief reply, was the whole of the transaction so far as she was concerned. It is not strange if it made no impression upon her mind, but passed at once from her recollection.

The rule of law is, that the positive testimony of one credible witness to a fact is entitled to more weight than that of several others who testify negatively, or at most to collateral circumstances merely persuasive in their character. 3 Greenl. on Ev., § 375. Applying this rule in the present case, we are impelled to the conclusion that the testimony of Todd outweighs that of Miss Brown, and hence that it was proved on the trial that the rope was delivered to the defendant for shipment to Chicago, as alleged in the complaint.

It follows from the foregoing views that the judgment of the circuit court must be reversed, and a venire de novo awarded.

By the Court.— So ordered.