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. If 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): timony. 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 im 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 "While it is undoubtedly true that a jury men acquire in the rugged school of expe- is not at liberty to consider any fact pertirience is a valuable asset to them, when they nent to the issue which they are called upon are called upon to perform jury duty. to try, unless it is found in the testimony there is a conflict in evidence pertaining to adduced, even though such fact may be some fact upon which a farmer has acquired known to some one, or all, of the jury, yet knowledge by his experience, which is not this rule does not, and cannot from the very common to the general run of mankind, but nature of things, forbid a juror, in weighing which enables him to decide with accuracy the credibility of the testimony, from taking who is telling the truth, the half dozen farm-into consideration his own knowledge of the ers who may be on a jury should be permit- character of the witness delivering such tested 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 cos-pression does the testimony make upon the mopolitan 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 We 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. 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. 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 the knowledge must be common to all the jurors. We conclude that the instruction rightly understood was not erroneous. Moreover, we do not think that the instruction could prejudice the jury in answering the questions which were answered adversely to the contention of the plaintiff. Judgment affirmed. [1] The plaintiff's evidence is directed to two grounds of negligence, namely, excessive speed and failure to signal for the crossing. The highest estimate of speed is 50 miles per hour. We cannot close our eyes to the fact that, in order to obtain an average speed, including slackening and stops, of 30 miles an hour, the speed at some points 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 staJORDAN 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 rapid transit. The competitors of the de1. RAILROADS (§ 348*)-COLLISIONS VEHICLES-NEGLIGENCE-EVIDENCE-SUFFI- fendants freely employ it. No statute for CIENCY. WITH In an action against an interurban electric railroad company for death in collision between its car and an automobile, evidence held insufficient to show negligence in running at excessive speed, or in failing to signal for a crossing. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1138-1149; Dec. Dig. § 348.*] 2. EVIDENCE (§ 586*)-COLLISIONS WITH VEHICLES-SIGNALS FOR CROSSING. That a witness whose mind was "pretty well occupied". did not hear an electric car signal for a highway crossing does not rebut the motorman's positive testimony that he did signal. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2432-2435; Dec. Dig. § 586.*] Appeal from Circuit Court, Kenosha County; E. B. Belden, Judge. Action by Henry F. Jordan, administrator, against W. I. Osborne and others, receivers. Judgment for defendants, and plaintiff appeals. Affirmed. Houghton, Neelen & Houghton, for appellant. Fisher & Fisher (Bull & Johnson, of counsel), for respondents. bids it. In the absence of some peculiar circumstances or particular conditions, other than a country highway crossing somewhat obscured by trees and buildings, it is not for this court or for a jury to say that such speed in the open country is illegal or negligent. At the highway crossing, there was a small station, where the electric car stopped on signal for the reception and discharge of passengers. There was a crossing sign. The car was coming from the north. The view to the north was considerably obstructed by buildings, trees, and a fence, but the track itself was visible straight ahead on the highway for a distance of about 100 feet, and when the boundary of the right of way was reached 59 feet distant from the nearest rail on the westerly or south-bound track, not only the crossing, but the track north and south for a long distance was visible. [2] The second ground of negligence rests upon the failure to signal for the crossing. There are no statutory regulations directly applicable to electric interurban cars, and covering such a situation. Nevertheless, ordinary 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 facie 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 in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 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 affirmative and positive testimony of the motorman, according to the rule adopted by this court and applied in Sutton v. Railway Co., 98 Wis. 157, 73 N. W. 993; Ryan v. La Crosse City R. Co., 108 Wis. 122, 83 N. W. 770. There was therefore no evidence to go to the jury upon the question of defendants' negligence. Upon the question of decedent's contributory negligence, we need not pass, cause unnecessary to the decision of case. Judgment affirmed. had not passed to the mining company. Within a day or two after receipt of the $50 check, the check was indorsed and put through the American National Bank of St. Paul, Minn. On April 23, 1909, the Hamilton National Bank of Chicago indorsed the check. April 27, 1909, the Spokane Clearing House indorsed it, and on the same day the check was protested for nonpayment and the minbeing company notified. The question was litigated on the trial as the to who had possession of the typewriterthe gas light company or the respondent— and the court below obviously regarded that the only disputed question of fact in the case, since that was the only question subThe jury found that the sheriff who held the typewriter on execution left it in the possession of the respondent. The possession of the respondent was therefore lawful, if the title to the property had passed to the mining company. L. C. SMITH & BROS. TYPEWRITER CO. mitted to the jury. v. LUEBKEMAN. (Supreme Court of Wisconsin. Nov. 14, 1911.) SALES (§ 321*)-REMEDIES OF SELLER-RETAKING PROPERTY-TIME. Where 45 days elapsed between the time the seller had notice of the nonpayment of a check given as a part payment on a typewriter and the time it brought replevin for the typewriter, the seller could not recover it on the ground of nonpayment of the check as agreed upon. [Ed. Note.-For other cases, see Sales, Cent. Dig. § 903; Dec. Dig. § 321.*] Appeal from Circuit Court, Eau Claire County; A. J. Vinje, Judge. Action by L. C. Smith & Bros. Typewriter Company against Chris. Luebkeman. From a judgment for defendant, plaintiff appeals. Affirmed. To say nothing of the length of time which elapsed after the delivery of the check until it was presented at the Spokane bank, a period of about 14 days, when in the regular course of mail it would have reached such bank upon which it was drawn in about three days, nothing was done to regain possession of the typewriter from the time the plaintiff had notice of nonpayment of the check, May 4, 1909, until June 18th following, a period of 45 days. Conceding that the sale was on terms of $50 cash and $50 time, it was the duty of Fred. Arnold, for appellant. Sturdevant & the appellant upon receipt of the check, delivFarr, for respondent. KERWIN, J. This action was brought to recover possession of a typewriter. Judgment was entered for the defendant, and the plaintiff appealed. ery of the typewriter, and nonpayment of the check, to act promptly in reclaiming its property, else the leaving of the property in possession of the vendee for an unreasonable time would amount to an absolute delivery and waiver of simultaneous payment. Goldsmith v. Bryant, 26 Wis. 34. On April 13, 1909, a typewriter salesman 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 aer'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 warded 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 v. Lewis, 218 ped from St. Paul, Minn., to the Germania | Pa. 141, 67 Atl. 45, 1 L. R. A. (N. S.) 948, Mining 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 mining company ceased doing business at Eau Claire, but left the typewriter at its place of business there. Later the Eau Claire Gas Light Company, landlord of the For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes St. Rep. 672; Wigton v. Bowley, 130 Mass. 252; Crawford v. Spraggins, 109 Ala. 353, 19 South. 372; Parker v. Baxter, 86 N. Y. 586. Upon the undisputed evidence in this case, we see no escape from the conclusion that the title passed, because the appellant waived its right to the cash payment and also failed to seasonably reclaim the typewriter. which was not introduced at the former trial, and thereafter to make its findings of fact. Eisentraut v. Cornelius, 134 Wis. 532, 115 N. W. 142, 126 Am. St. Rep. 1027. The case remained in the files of this court until February 13, 1909, when it was remanded to the circuit court of Clark county. Notice of Some other points are raised by appellant, which we have considered and do not regard well made, and we do not regard them of sufficient gravity to require special treat-remittitur was served February 13, 1909. On ment. We find no prejudicial error in the record, and therefore the judgment must be affirmed. The judgment is affirmed. VINJE, J., took no part. February 16, 1909, plaintiff filed a petition in the circuit court to amend the summons and complaint and bring in additional parties as directed by this court, and the court made an order to show cause thereon returnable March 8, 1909. The defendants thereupon petitioned the circuit court to dismiss the cause, for the reason that the action had not been continued for cause or brought to trial within one year after its reversal, as (Supreme Court of Wisconsin. Nov. 14, 1911.) provided by section 3072, Stats. 1898. That EISENTRAUT v. CORNELIUS et ux. 1 APPEAL AND ERROR (§ 1203*)-NOTICE OF [Ed. Note.-For other cases, see Appeal and Error, Cent Dig. §8 4687, 4688; Dec. Dig. § 1203.*] 2. CONTINUANCE (§ 40*)-TIME FOR APPLICA TION. An application for a continuance may be made for cause before the case is noticed for trial. [Ed. Note. For other cases, see Continuance, Cent. Dig. § 124; Dec. Dig. § 40.*] Appeal from Circuit Court, Clark County; James O'Neill, Judge. Action by Emilie Eisentraut, as administratrix, against Charles Cornelius and wife. From a judgment dismissing the cause, plaintiff appeals. Affirmed. See, also, 134 Wis. 532, 115 N. W. 142, 126 Am. St. Rep. 1027. F. E. Withrow (Bunge & Bosshard and Arthur A. Mueller, of counsel), for appellant. Sturdevant & Farr, for respondents. statute, as amended by chapter 365, Laws of 1905, provides as follows: "In every case in error or on appeal in which the Supreme Court shall order a new trial or further proceedings in the court below, the record shall be transmitted to such court and proceedings had thereon within one year from the date of such order in the Supreme Court, or in default thereof the action shall be dismissed, unless, upon good cause shown, the court shall otherwise order. It shall be the duty of the losing party in any action or proceeding when a judgment or order in his favor in the court below is reversed by the Supreme Court on the appeal of the opposing party to pay the clerk's fees on such reversal, procure the record in said cause to be remitted to the trial court and bring the cause to trial within one year after such reversal, unless the same be continued for cause, and if he shall fail so to do, his action shall be dismissed." The first sentence seems to impose the duty of procuring the transmission to the court below on the plaintiff, because the result of failure is that the action shall be dismissed, unless, etc. The second sentence appears to impose this duty on the losing party, who may or may not be the plaintiff, and for failure "his action shall be dismissed.” In the instant case, however, the plaintiff and the losing party are the same. The original judgment in her favor was reversed by the Supreme Court on the appeal of the opposing party, and the same seems to be within the letter of the statute. That the appellant made a belated attempt to bring TIMLIN, J. [1] On February 18, 1908, in new parties, as required, cannot avail her this court reversed a judgment in favor of in the face of this statute, which requires the plaintiff in this case, and remanded the either that there be a continuance for cause, same, with directions that the court proceed or that the action be brought to trial, and in to bring in all the parties necessary to a default of both that the action be dismissed. complete determination or settlement of the The statute is quite drastic, but, so long as questions involved, frame issues, and reopen the Legislature, acting within its power, sees the case for the reception of such other ma- fit to impose such laws, it is our duty to terial evidence as might be produced, and obey and enforce them. State v. Johnson, 105 Wis. 90, 80 N. W. 1104; Miami Bank | knowledge, but which had escaped his mind at V. Goldberg, 126 Wis. 432, 105 N. W. 816; the time of the injury, whether the explanatory circumstances were such as to excuse such forSutton v. Railway Co., 114 Wis. 647, 91 N. W. 121. [2] The appellant suggests that the cause could not be noticed for trial before the additional parties were brought in, and could not be continued for cause until after it was noticed for trial. We consider these difficulties imaginary. There is no such obstacle in the way of an application for a continuance. Sutton v. Wegner, 72 Wis. 294, 39 N. W. 775; Blair v. Cary, 9 Wis. 543. Judgment affirmed. getfulness held for the jury. [Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 821.*] 5. MUNICIPAL CORPORATIONS (§ 822*)-DEFECTIVE SIDEWALKS-INJURIES TO PEDESTRIAN - CONTRIBUTORY NEGLIGENCE INSTRUCTIONS. In an action for injuries on a defective sidewalk, the court defined ordinary care, and then stated that as plaintiff had knowledge of the defect before the accident that circumstance required some evidence, direct or circumstantial, reasonably sufficient to overcome the presumption of negligence raised by such knowledge, either by showing that plaintiff was proceeding on the walk paying attention to the necessity of avoiding the danger, or that he forgot the existence of it, and that his forgetfulness under the circumstances was consistent with ordinary care. Held not error, as calculated to mislead the jury, to infer that the burden of proof was ZOELLNER v. CITY OF FOND DU LAC. (Supreme Court of Wisconsin. Nov. 14, 1911.) 1. MUNICIPAL CORPORATIONS (§ 812*)-INJU- on defendant to show excusable forgetfulness RIES TO PEDESTRIANS-DEFECTIVE SIDEWALK on the part of plaintiff. -NOTICE OF INJURY-SIDEWALK SUPERINTENDENT-CHARTER PROVISIONS. [Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 822.*] 6. DAMAGES (§ 132*) - EXCESSIVENESS-PERSONAL INJURIES. Fond du Lac City Charter (Laws 1883, c. 152) c. 18, § 6b, as added by Laws 1889, c. 435, §4, requiring notice of injuries from defective sidewalks to be given to the street commissioner tive city sidewalk, was 71 years old and earnPlaintiff, at the time of injury by a defecor sidewalk superintendent, or to an alderman of the ward wherein the injury occurred, within ed $2.50 a day.. He suffered a hole cut through 30 days thereafter, remained in force, notwith-stroyed, and two others injured. He was conhis face into his mouth. Two teeth were destanding the city's adoption, in 1904, of St. 1898, § 925-201 to 925-207, relating to the construction and repair of sidewalks. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1696-1707; Dec. Dig. § 812.*1 2. MUNICIPAL CORPORATIONS (8_812*)-DEFECTIVE SIDEWALKS-INJURIES-NOTICE-SIDEWALK SUPERINTENDENT. Defendant city charter having provided for notice of injury to persons by defects in city sidewalks to be given to the sidewalk superintendent, the city adopted a resolution that the board of public works, in which authority to build and repair sidewalks was vested by the city's adoption of St. 1898, §§ 925-201 to 925207, should be authorized to employ a sidewalk "inspector" at a specified salary, and subsequent to this ordinance an ordinance was adopted, fixing the salaries of city officers, and, among others, that of "sidewalk superintendent" at $600. Held, that a person employed thereunder at the rate of $2 a day, who inspected sidewalks, made reports to the common council, served notices to repair, etc., though a mere employé and not an officer of the city, was the sidewalk superintendent within the city's charter, and that a notice of injury served on him was a compliance with the charter requirement. [Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. § 812.*] fined to his bed about two weeks and to his [Ed. Note.-For other cases, see Damages, Action for personal injuries sustained by reason of a defect in a sidewalk. On the 8th day of May, 1909, at about 6:30 in the evening, the plaintiff, accompanied by his daughter, was walking home from his work along the sidewalk on the south side of Maine street in the defendant city, carrying some carpenter tools in his hands. When at a point on said sidewalk about 12 feet north of the north line of Twelfth street, one or more of the boards, when stepped upon, tipped up, causing the plaintiff to catch his foot thereon, and to fall with great violence upon the sidewalk. It is claimed the stringers of the walk, which ran lengthwise, had become so rotten that six of the boards at the place of the injury were loose and entirely unfastened, and that the boards themselves were more or less decayed. Notice of the injury was served upon one G. F. McEntee, claimed to be the sidewalk superintendent of the 4. MUNICIPAL CORPORATIONS (§ 821*)-DEFEC- defendant city. The jury, by special verdict, TIVE SIDEWALKS-INJURIES TO PEDESTRIAN found (1) that the boards of the sidewalk at - CONTRIBUTORY NEGLIGENCE QUESTION the place where plaintiff fell were loose FOR JUBY. In an action for injuries to a pedestriar from the stringers; (2) that such loose conby a defect in a sidewalk, of which he had dition of the boards rendered the walk at 3. MUNICIPAL CORPORATIONS (§ 821*) — DEFECTIVE SIDEWALKS-INJURIES TO PEDESTRI AN-CONTRIBUTORY NEGLIGENCE. That a person injured on a city sidewalk used the walk with knowledge of the defect does not conclusively establish contributory negligence. [Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 821.*] |