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BARNES, J. (after stating the facts as above). [1] Appellant insists that the court erred in giving the following instruction to the jury: “And you should consider and decide whether the plaintiff ever raised and lowered the saws in question by means of the little wheel under the lath machine table, and if you find that he did so before his injury then you will conclude that he must have seen the Saws and known that they were not covered, and in that event you should take that into consideration.” The fault found with the instruction is that the court assumed that it was an established and undisputed fact in the case that the plaintiff must have seen the saws of the lath machine and have known that they were not guarded, if he raised these saws by means of the wheel under the table of the machine; whereas the jury would be warranted in reaching a contrary conclusion on the evidence. A reading of the testimony does not throw any satisfactory light on the question, as very little of it pertains to the point, and that only in an incidental way. In fact, there does not appear to have been much of a controversy upon the question on the trial. A photograph showing the wheel and the projection of the saws under the table of the lath machine, as well as the absence of a guard, was in evidence. Respondent argues that this photograph shows to a demonstration that the court was right. The trial judge, in his opinion on the motion for a new trial, stated that it was perfectly obvious from an inspection of the photograph that it was impossible to look for and find the little wheel under the lath machine table, by means of which the saws were raised and lowered, and which was located within a few inches of the saws, without seeing the saws and observing that they were unguarded. The conclusion of this court is that it is highly improbable that plaintiff did not see the saws during the operation, but that it is not an impossibility. The questions therefore are: Does the record show that the court erred, and, if so, was the error prejudicial? Some significance should be attached to the fact that plaintiff's counsel did not in any way call the attention of the court to the alleged misapprehension of the facts, as we think is customary, though perhaps not obligatory. Trial courts are uniformly careful not to invade the province of the jury in determining questions of fact, and if the Court's attention had been called to the alleged error it would undoubtedly have been corrected, if error it was. [2] The court and the jury viewed the premises and the machines in question. The knowledge which jurors acquired from such view they had the right to use in determining the credibility of the evidence offered. Wash

W. 328; Neilson v. Railway Co., 58 Wis. 516, 523, 17 N. W. 310; Johnson v. Boorman, 63 Wis. 268, 22 N. W. 514; American States Security Co. v. Railway Co., 139 Wis. 199, 205, 120 N. W. 844, and cases cited. This being So, they had the right to use such knowledge in determining whether the court made a Correct statement of fact. We havé no means of knowing just what knowledge the jury imbibed from this view. The jurors might have reached a different conclusion from that arrived at by the court, and might have disregarded his mistake entirely in arriving at a verdict, if any mistake was in fact made. Section 3072m, Stats. (Laws of 1909, c. 192), provides: “No judgment shall be reversed * * * on the ground of misdirection of the jury • * * unless in the opinion of the court to which the application is made, after an examination of the entire action, * * * it shall appear that the error complained of has affected the substantial rights of the party seeking to reverse or set aside the judgment.” After examining the record, this court is far from being satisfied that the trial court committed any error. The evidence offered, as far as there is any, strongly tends to support the conclusion of the trial court, and there is no evidence to the contrary. There is, of course, the possibility that the trial Court was wrong; but this falls far short of an affirmative showing of prejudicial error, or in fact of any error. Under such circumstances, the judgment should not be reversed. Wiese v. Riley, 132 N. W. 604. [3] After the jury had been deliberating for some time, they were called into the courtroom, and the following colloquy took place: “A juror: A question we want to know was this: I asked you the other day if, in deciding this question, jurors were supposed to take into consideration the things in regard to this—in case they positively know this from experience. For instance, if one has, to use a hypothetical case, if he is an expert, is the juror supposed to use the information that he knows in regard to that in weighing this evidence and convincing other jurors as to the facts of the case? The Court: I understand your question, I think. It is usual to instruct a jury in some cases that they are expected to use all of the knowledge, skill, and judgment that they posSess, and bring that to bear upon questions involved. A juror who has expert knowledge —that is, personal, not hearsay—is entitled to bring that to bear in assisting him and in assisting the other jurors in arriving at a right verdict. In fact, it is impossible to separate a juror from his personal knowledge anyway, and he is expected to use that. That is part of his mental equipment in discharging his duty. The juror: In this case, it has developed there are several that understand the construction of these machines. We can't very well separate from— The Court:

re

edge from anything else. You are entitled that the juror who asked the question, or to use it."

any of his associates, was a competent witIt is argued that the court committed prej. ness, rather than a qualified juror. It is udicial error, in that the jury were advised well settled that jurors cannot supply a mathat they might return a verdict upon their terial item of evidence by assuming knowlknowledge, or supposed knowledge, not de- edge on the subject. It is just as well setrived from the evidence in the case. The tled that it is highly improper for a juror language used by the court was not happy, in to assert in the jury room knowledge on that there is a possibility that it might have some specific point involved in the trial misled the jury into the belief that they which would make him a material witness. were at liberty to treat their knowledge as If use is to be made of such knowledge, it evidence, and decide the case upon such should be given under oath from the witness knowledge, rather than upon the testimony, stand, where the party adversely affected and even in opposition thereto. This they would have the right of cross-examination. might not do. Washburn v. Railway Co., 59 So we think the real question here is, Wis. 364, 370, 18 N. W. 328; Johnson v. May one or more jurors use the knowledge Boorman, supra; Sherman V. Menominee which they have gained from observation River L. Co., 77 Wis. 14, 22, 45 N. W. 1079. and experience, not common to all the juThe court told the jury at the beginning of rors, in determining the credibility of the its charge: “It is your duty to answer these evidence offered, and give the benefit of such questions according to the fact in each in knowledge to their fellow jurors, who may stance as you shall find the fact to be from lack such information? Lawyers know that the evidence given here in court. * * * In jurors always have and always will do just deciding these questions, you should con- what we think the court in effect said might fine your consideration to the evidence given be done here, and it is difficult to see how here in court and the proceedings had here they could well do otherwise. If a juror in your presence." As to each of the ques- knows that a plaintiff in an action is a man tions propounded to the jury, they were told of character and standing, whose word is as in substance to answer them according to good as his bond in the community in which the preponderance of the evidence. The he lives, and that the defendant is shifty, charge repeatedly informed the jury that the tricky, untruthful, and unreliable, and a case must be decided upon the evidence giv- question of veracity arises between the two, en on the trial. The juror who asked the it is well-nigh impossible for him to question above quoted undoubtedly so under- main oblivious to the facts which he knows stood the charge, because he did not ask if when he is determining the question of credthe jurors might use their special knowledge ibility. So, too, when one witness testifies as evidence, but if the jurors might consid- to something which the observation and exer such knowledge in weighing the testimony perience of the juror tells him is false, while offered by the parties.

another witness has testified in reference to In view of the repeated statenients of the same matter to what he knows to be the court above referred to, we think the the truth, it is difficult to imagine how a jury would construe the somewhat ambigu- juror could disregard what he knows in ous language of the court as no more than passing upon the credibility of the witnessan affirmative answer to the question asked, es. If he could do it, it is not desirable that and as informing them that they might use he should, because that knowledge is part the knowledge which they had gained from of the equipment which he brings with him observation and experience in determining to the jury box. A person is not supposed the credibility of the evidence. What the to forget everything he ever knew and bejuror said in effect was that he and some of come an automaton when he is sworn as a his fellow jurors had practical knowledge of juror. He may make use of the intelligence the construction of lath machines, not com- with which he is endowed and the knowlmon to all the panel. The language used by edge he has gained for the legitimate purthe court was certainly no more calculated pose of passing upon the credibility of the to mislead than the charge which was held evidence. not to be erroneous in Neanow v. Uttech, 46 It is said in the discussion of the first er. Wis. 581, 586, 1 N. W. 221. There the court ror assigned that jurors may use the knowl. instructed as follows: "You are to bring to edge which they acquire from a view of the bear upon this question [the exercise of or- locus in quo in passing upon the credibility dinary care) your own knowledge and your of evidence, and the proposition is well setown judgment. It is for you to examine all tled by the cases cited and referred to. the testimony, all the surroundings, all the Knowledge gained in this way is no more circumstances, and then apply your own sacred than knowledge acquired in some judgment, your own good sense, and answer other way, provided it is actually acquired. the question, either in the negative or af. It is proper for trial courts to instruct juries firmative."

that in weighing testimony they must take There was no assertion that the jurors into consideration their knowledge, observahad any knowledge of the specific facts in tion, and experience. Such an instruction

v. Boorman, 63 Wis. 268, 274, 275, 22 N. W. 514. Juries are frequently and properly told that in determining the credibility of testimony they may consider the appearances of witnesses on the stand, the manner in which they give their testimony, and the candor or lack of candor with which it is given. So, too, it has been held proper to instruct a jury, in a personal injury action brought by a minor, that they might consider the plaintiff, as he had been exhibited before them on the witness stand, in determining the question of his intelligence and capacity to apprehend and avoid the dangers incidental to his employment. Disotell v. Luther Co., 90 Wis. 635, 64 N. W. 425. In fact, cases in this court, and generally elsewhere, are to the effect that jurors may use Common knowledge in deciding the weight that is to be accorded to the evidence adduced. There is authority for the proposition that the knowledge which a juror may use in enabling him to pass upon the credibility of testimony must be knowledge that is common to all the jurors, and an obiter expression, in Northern Supply Co. v. Wangard, 123 Wis. 1, 100 N. W. 1066, 107 Am. St. Rep. 984, might well be understood as so holding. This would seem to be a narrow rule, if not an unwise one. The knowledge which men acquire in the rugged school of experience is a valuable asset to them, when they are called upon to perform jury duty. If there is a conflict in evidence pertaining to some fact upon which a farmer has acquired knowledge by his experience, which is not common to the general run of mankind, but which enables him to decide with accuracy who is telling the truth, the half dozen farmers who may be on a jury should be permitted to use that knowledge, and give their confrères the benefit of it. The other jurors are not bound to accept the statements as conclusive, but may give them such weight as they think they are entitled to. What is true of the farmer is true of those following other vocations. Usually our juries are cosmopolitan in character, being made up of the farmer, the mechanic, the business man, and the ordinary laborer. It is largely because juries are selected from all the walks of life that they ordinarily make such desirable triers of fact. Some jurors on almost every panel are at least apt to have some knowledge that is not common to all the jurors, and which may be a valuable aid in separating false or mistaken testimony from that which is true. Take the ordinary case of an accident at a street crossing, where the alleged negligence consists in running the car at an excessive rate of speed, and some witnesses swear that it was running 30 miles an hour, while others say it was running but 3 or 4 miles an hour, and the undisputed evidence is that the car was stopped within 10 feet or less from the place of collision. Many jurors who live in rural districts may

which a car may be stopped. Other jurors may know from their observation and experience that a car going at the rate of 30 miles an hour cannot be stopped in 10 feet. Must they divest themselves of this knowledge, because it is not common to all the jurors? We do not think so. Looking at the question from a practical point of view, they cannot do so, and there is little use in building up a theoretical rule of law that will not, and in fact cannot, work when it is put to practical application. There is a greater dearth of authority upon the point than one would expect to find. The Massachusetts court, without discussion or citation of authority, intimated, if it did not decide, in Schmidt v. Insurance Co., 1 Gray (Mass.) 529, that a juror could use his personal knowledge of some particular fact in weighing evidence only when the fact was a matter of common observation or general knowledge. The South Carolina court holds that a juror who has knowledge of the infamous character of a witness may use that knowledge in passing upon the credibility of the witness, although it may not be common to all the jurors, and in support of its conclusion says, in State v. Jacob, 30 S. C. 131, 136, 8 S. E. 698, 701 (14 Am. St. Rep. 897): “While it is undoubtedly true that a jury is not at liberty to consider any fact pertinent to the issue which they are called upon to try, unless it is found in the testimony adduced, even though such fact may be known to some one, or all, of the jury, yet this rule does not, and cannot from the very nature of things, forbid a juror, in weighing the credibility of the testimony, from taking into consideration his own knowledge of the character of the witness delivering such testimony. The credibility of testimony is a question exclusively for the jury, and we do not see how it is possible for a juror in considering that question to exclude from his mind his own knowledge of the character of the witnesses. The question is, What impression does the testimony make upon the minds of the jurors? and that impression must necessarily be affected by their own knowledge of the character of the witnesses from whom such testimony proceeds. We suppose that it rarely, if ever, happens that the character of at least some of the witnesses is not known to some or all of the jurors, and we do not see how any rule of law can prevent such knowledge from having its weight. If a fact is testified to by a witness whom the jurors know to be of such an infamous character as to render him totally unworthy of belief it is difficult to understand how any rule of law can compel a jury to believe that which they cannot believe. The constitution of the human mind renders such a rule as that contended for utterly impracticable.” To the same effect is McKain v. Love, 2 Hill (S. C.) 506, 27 Am. Dec. 401.

WITH

be most generally approved is that the jury, , Racine and Kenosha. The schedule time of in examining the evidence and in determin- the car between Racine and Kenosha was ing the weight to be given to it, may use 20 minutes, the distance 10 miles, and there such general practical knowledge as they were in this distance 5 or 6 stops. The dismay have upon the subject. Willis v. Lance, tance between Racine and Evanston was 50 28 Or. 371, 43 Pac. 384, 487; Douglass v. miles, and the time 1 hour and 52 minutes, Trask, 77 Me. 35; Johnson v. Hillstrom, 37 including stops. So that the whole distance Minn. 122, 33 N. W. 547; Kitzinger v. San- had to be covered at a rate of between 26 born, 70 Ill. 146; People v. Zeiger, 6 Par- and 27 miles an hour, and the distance beker's Cr. R. (N. Y.) 355; Brackwood's Sacket tween Racine and Kenosha at the rate of on Instructions, $ 410. This rule does not 30 miles an hour, including stops. say, and we think it does not mean, that (1) The plaintiff's evidence is directed to the knowledge must be common to all the two grounds of negligence, namely, excessive jurors. We conclude that the instruction speed and failure to signal for the crossing. rightly understood was not erroneous. More- The highest estimate of speed is 50 miles over, we do not think that the instruction per hour. We cannot close our eyes to the could prejudice the jury in answering the fact that, in order to obtain an average questions which were answered adversely to speed, including slackening and stops, of 30 the contention of the plaintiff.

miles an hour, the speed at some points Judgment affirmed.

must reach very close to, if not quite touch, 50 miles per hour. It is common knowledge that passenger trains on a good roadbed

frequently exceed this speed between sta. JORDAN V. OSBORNE et al. † tions. The "great mass of mankind" which (Supreme Court of Wisconsin. Nov. 14, 1911.) inhabits this part of the world demands such 1. RAILROADS (8 348*) — COLLISIONS

rapid transit. The competitors of the de VEHICLES-NEGLIGENCE-EVIDENCE – SUFFI- fendants freely employ it. No statute forCIENCY.

bids it. In the absence of some peculiar cirIn an action against an interurban electric cumstances or particular conditions, other railroad company for death in collision between its car and an automobile, evidence held insuf-than a country highway crossing somewhat ficient to show negligence in running at exces- obscured by trees and buildings, it is not for sive speed, or in failing to signal for a cross- this court or for a jury to say that such ing.

speed in the open country is illegal or negli. [Ed. Note. For other cases, see Railroads, gent. At the highway crossing, there was a Cent. Dig. 88 1138-1149; Dec. Dig. § 348.*] 2. EVIDENCE (8 586*)—COLLISIONS WITH VE

small station, where the electric car stopped HICLES-SIGNALS FOR CROSSING.

on signal for the reception and discharge of That a witness whose mind was "pretty passengers. There was a crossing sign. The well occupied”. did not hear an electric car car was coming from the north. The view to signal for a highway crossing does not rebut the north was considerably obstructed by the motorman's positive testimony that he did signal.

buildings, trees, and a fence, but the track it[Ed. Note. For other cases, see Evidence, self was visible straight ahead on the highCent. Dig. 88 2432–2435; Dec. Dig. $ 586.*] way for a distance of about 100 feet, and

when the boundary of the right of way was Appeal from Circuit Court, Kenosha Coun- reached 59 feet distant from the nearest rail ty; E. B. Belden, Judge. Action by Henry F. Jordan, administrator, only the crossing, but the track north and

on the westerly or south-bound track, not against W. I. Osborne and others, receivers. south for a long distance was visible. Judgment for defendants, and plaintiff ap

[2] The second ground of negligence rests peals. Affirmed.

upon the failure to signal for the crossing. Houghton, Neelen & Houghton, for appel. There are no statutory regulations directly lant. Fisher & Fisher (Bull & Johnson, of applicable to electric interurban cars, and counsel), for respondents.

covering such a situation. Nevertheless, or

dinary care would doubtless require a sigTIMLIN, J. The plaintiff was nonsuited, nal, and it was customary in the operation and the inquiry is, Was there a prima facio of the road in question to give such signals. case made for the jury, giving the evidence The motorman testified: "I blew my whistle and all reasonable inferences therefrom when I was about 600 feet north of the their utmost probative effect? On the sub-crossing; that was my usual custom.” This ject of defendants' negligence, it is shown is met by the testimony of only one witness, that they are operating as receivers an elec-a Mr. Lippert, who testified as follows: tric interurban railway running between Mil. “After I saw the car through that opening, waukee and Chicago. The deceased came to I didn't hear any signals whatever." The his death on October 2, 1908, in consequence opening referred to was through the trees, of a collision between his automobile and de- or between the trees and buildings, where, fendants' electric car at a highway grade at a point on the highway 355 feet east of crossing of the interurban railway between the crossing, some section of the railway •For other cases see same topic and section NUMBER 10 Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexen

track to the north of the crossing was visi- , mining company, levied by execution on the ble. “Q. State whether or not you paid any property of the mining company, including attention or listened for signals. A. I don't the typewriter. The sheriff after levy left believe I believe my mind was pretty well the typewriter in possession of respondent. occupied, but I didn't hear anything. I am On June 18, 1909, appellant brought replevin sure I didn't hear no whistle that day. Aft- to recover possession of the typewriter, on er that point, I didn't hear no whistle; I the claim that the $50 check had not been didn't hear any signals at all.” This evi-paid, and hence the title to the typewriter dence was insufficient to rebut the affirma- bad not passed to the mining company. tire and positive testimony of the motorman, Within a day or two after receipt of the $50 according to the rule adopted by this court check, the check was indorsed and put and applied in Sutton V. Railway Co., 98 through the American National Bank of St. Wis. 157, 73 N. W. 993; Ryan v. La Crosse Paul, Minn. On April 23, 1909, the Hamilton City R. Co., 108 Wis. 122, 83 N. W. 770. National Bank of Chicago indorsed the check. There was therefore no evidence to go to the April 27, 1909, the Spokane Clearing House jury upon the question of defendants' negli- indorsed it, and on the same day the check gence. Upon the question of decedent's con

was protested for nonpayment and the mintributory negligence, we need not pass, being company notified. cause unnecessary to the decision of the

The question was litigated on the trial as case.

to who had possession of the typewriterJudgment affirmed.

the gas light company or the respondentand the court below obviously regarded that the only disputed question of fact in the

case, since that was the only question subL C. SMITH & BROS. TYPEWRITER CO. mitted to the jury. The jury found that v. LUEBKEMAN.

the sheriff who held the typewriter on execu(Supreme Court of Wisconsin. Nov. 14, 1911.) tion left it in the possession of the respondSALES (321*)-REMEDIES OF SELLER-RETAK- therefore lawful, if the title to the property

ent. The possession of the respondent was ISG PROPERTY-TIME.

Where 45 days elapsed between the time the had passed to the mining company. seller had notice of the nonpayment of a check To say nothing of the length of time which given as a part payment on a typewriter and elapsed after the delivery of the check until the time it brought replevin for the typewriter, it was presented at the Spokane bank, a pethe seller could not recover it on the ground of riod of about 14 days, when in the regular ponpayment of the check as agreed upon.

[Ed. Note. For other cases, see Sales, Cent. course of mail it would have reached such Dig. $ 903; Dec. Dig. § 321.*)

bank upon which it was drawn in about three

days, nothing was done to regain possession Appeal from Circuit Court, Eau Claire of the typewriter from the time the plain. County; A. J. Vinje, Judge. Action by L. C. Smith & Bros. Typewriter May 4, 1909, until June 18th following, a

tiff had notice of nonpayment of the check, Company against Chris. Luebkeman. From

period of 45 days. a judgment for defendant, plaintiff appeals.

Conceding that the sale was on terms of Affirmed.

$50 cash and $50 time, it was the duty of Fred. Arnold, for appellant. Sturdevant & the appellant upon receipt of the check, deliv. Farr, for respondent.

ery of the typewriter, and nonpayment of the

check, to act promptly in reclaiming its propKERWIN, J. This action was brought to erty, else the leaving of the property in posrecover possession of a typewriter. Judg: session of the vendee for an unreasonable ment was entered for the defendant, and the time would amount to an absolute delivery plaintiff appealed.

and waiver of simultaneous payment. GoldOn April 13, 1909, a typewriter salesman smith v. Bryant, 26 Wis. 34. of the appellant obtained a written order The assertion of the right to reclaim on from the Germania Mining Company for a failure to make a cash payment must follow typewriter at the price of $100, $50 cash and without unnecessary delay upon the purchas$50 on or before 60 days. The order and a er's default. The seller is at once put to his $50 check made by the mining company on a election, upon default in payment, whether Spokane, Wash., bank were immediately for- he will waive the condition as to payment Farded to the plaintiff at St. Paul. The and allow the delivery to become absolute, order provided that the typewriter be ship or retake the property. Frech y. Lewis, 218 ped from St. Paul, Minn., to the Germania Pa. 141, 67 Atl. 45, 1 L. R. A. (N. S.) 948, Nining Company at Eau Claire, Wis. The 120 Am. St. Rep. 864; Leatherbury v. Contypewriter was shipped, and the check de- nor, 54 N. J. Law, 172, 23 Atl. 684, 33 Am. livered to plaintiff. Shortly afterwards, the St. Rep. 672; Wigton v. Bowley, 130 Mass. mining company ceased doing business at 252; Crawford v. Spraggins, 109 Ala. 353, Eau Claire, but left the typewriter at its 19 South. 372; Parker v. Baxter, 86 N. Y. place of business there. Later the Eau 586. Claire Gas Light Company, landlord of the Upon the undisputed evidence in this case,

'For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

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