Delvaux v. Kewaunee, Green Bay & Western Railway Co. ( 1915 )

The following opinion was filed October 5, 1915:

Marshall, J.

While counsel for respondent urge upon our attention some reasons' why the judgment should be affirmed, even though the ground the trial judge rested the decision on should seem unsound, the conclusion reached by the majority of the members of the court, renders it unnecessary to consider such reasons.

The sole question, therefore, to he determined is: Was the circuit judge clearly wrong in reaching the conclusion that the evidence so clearly demonstrates that the hoy was injured before the train was parted as to render his evidence to the contrary unbelievable ?

In view of the superior advantage a trial judge has for deciding whether evidence presents a jury question, and, especially, where the evidence is of the nature of that in this case, it requires a strong case against his conclusion to warrant the appellate tribunal in concluding, not only that he was wrong, but clearly so. Hence the initial decision in such a situation is infrequently disturbed.

Under the rules governing the matter, whether error essential to reversal exists in such a case as this, is often so shadowy as to render the requirement that it must clearly appear, the deciding factor. That, occasionally such a situation results in a disagreement is most natural, and un-' avoidable, unless there be such willingness to surrender deliberately formed judgment as to endanger the strength of the court. We have been unable to reach a unanimous conclusion here. The majority are constrained by careful study of the case not to condemn the decision complained of, while the minority are constrained to the contrary, all testing the evidence by the same rules of law.

It will not serve any valuable purpose to place on record an opinion discussing the evidence in detail. The trial judge evidently appreciated the legal test to be applied in determining whether the evidence presented a jury question. It seems we cannot do better than to substantially adopt his opinion. It bears satisfactory indications of his having carefully considered the evidence in all its bearings. Moreover, counsel for appellant on the oral argument seemed to be unable to find serious fault with the judge’s statements except as to one particular which the judge, evidently, regarded as trifling, under the circumstances.

The opinion was rendered on the motion to change the verdict so as to favor defendant. It was this, in effect:

The facts are fresh in my mind. As I viewed the case before submitting the case to the jury, and as I view it now, there has been no change. Plaintiff’s case rests wholly upon the boy’s story. He is eleven years old. His is the only testimony as to how the accident occurred. It is not corroborated by a single witness. His father, his aunt, and Joseph Taylor only gave evidence tending to impeach the evidence of the brakeman as to whether trains were uncoupled .while moving. So the claim of negligence in this instance rests wholly on the testimony of the boy, eleven years old.

Opposed to the boy’s evidence, we have that of the entire train crew of five men; Ernest Maddy, the brakeman, Ryder, the head brakeman, Arens, the fireman, Dingman, the conductor, and Buttrick, the engineer. They all testified, posi-. tively, that the train had stopped at the time they were opening the coupling, and that at least two attempts, most of them were positive there were three, were made before the front section was clear and moved away.

Suppose the five men who testified to the contrary of the boy as to the train not stopping are, in a measure, interested; they are corroborated by the evidence of five witnesses, W. II. Tierney, Oscar Giallagher, Patrick Gallagher, E. 0. Juley, and 0. H. Smith, that while the unbroken train stood there, they found the boy’s toes and some blood spots ahead of the rear section. These five witnesses who were not members of the train crew thus testified, to what defendant’s counsel denominate a physical fact, — the location of the toes and blood spots. Oscar Gallagher further testified that he was head switchman in the yard; that it was his duty to switch the cars after the engine laid up; that he was on duty that night; that he was just going to work, and that those cars had not been touched by their switch engine since he had left them. Besides, there is the fact that Juley went within twenty-five feet of the boy where he lay on the ground after his injury and the train was yet coupled up.

Further, there were four boys. Plaintiff produced one of them to say how the accident happened. Defendant produced one who did not know anything about the matter. Lawrence Yan Husen, the other, was just as positive that the boys caught ou to the train while it was moving as young Delvaux is that the train was uncoupled. Juley, who was called by Maddy and furnished the handkerchief with which to tie the boy’s leg, corroborated Maddy. These are the main facts. I may have erred in submitting the case to the jury. I was then firmly of the opinion that the facts were such that the jury could not do otherwise than decide as I have indicated and am disappointed. The plaintiff had the burden of proof.. Does the boy’s evidence under the circumstances outweigh the testimony of all the other witnesses so as to warrant finding, to a reasonable certainty, in his favor? I think not. Eleven witnesses contradicted him. Eive of them, especially as to the blood spots and finding the toes ahead of the rear section. The entire train crew testified that the train had stopped to allow uncoupling. Maddy says the entire train stood there as he called for help while the boy lay on the ground. Juley responded and said the same thing.

The foregoing abridgment of the trial court’s opinion seems a fair statement of the case. The majority failed to-find any efficient infirmity in it, and so the judgment must be: affirmed.

By the Court. — So ordered.

Siebeceer, KeewiN, and BaeNes, JJ., dissent

A motion for a rehearing was denied, with $25 costs, om December 7, 1915.