Hibbard v. Chicago, St. Paul, Minneapolis & Omaha Railway Co.

Upon the first trial of this case (96 Wis. 443) it was not suggested that there was any defect in the track or blocking which caused or contributed to the plaintiff’s, painful injury. In fact, it is admitted by the plaintiff himself that upon the former trial he testified that when the engine .moved back his right foot was caught under the rear wheel of the tender and run over, thus cutting off the fleshy portion of the bottom of the foot; but he says that since that trial he has looked over the ground and discovered that his foot must have been caught between the-guard rail and main rail by reason of defective blocking. The jury have found this to be the fact, and if their finding in this regard is supported by the evidence there seems no. substantial reason why the judgment should not be affirmed. Careful examination of the evidence compels us to say, however, that the plaintiff’s present claim is against the great, preponderance of the evidence. In the first place, it must be remembered that the plaintiff admits that upon the' first trial of the case he testified repeatedly that his foot was-caught under the wheel of the tender upon the main rail; and even upon the second trial he does not say that he can remember that his foot was caught between the guard rail and the main rail. It is true that he says upon his direct, examination that his foot was caught in the guard rail; but-*627upon cross-examination be admits that be does not know whether the wheel ran oyer his foot or not, that as the tender passed him he was outside of the rails, that he could not say whether his foobwas on the rail or not, that it might have been on the main rail from the time he placed it there until he was hurt, that he never knew that his foot was caught by the guard rail until after the first trial of the case, and that he does not know of his own knowledge what part of his foot came in contact with the guard rail. These admissions, and more that might be quoted, demonstrate very clearly that he has no recollection or knowledge of his foot being caught in the guard rail, but is simply reasoning the matter out.

But there is evidence in the case, which is not to be shaken or gainsaid, which speaks emphatically against the plaintiff’s present theory, and that is the evidence of the plaintiff’s shoe which was run over and which is in the same condition now as then. This shoe bears well-defined marks of the course of the wheel over it. They cannot be mistaken; nor can it be argued that the marks result from pressure between the flange of the wheel and the guard rail. From this shoe, with its markings, it is morally certain that the wheel passed over the foot from the heel toward the toe, beginning on the outside of the heel and crossing diagonally to the inside. When the shoe is put upon the model of the rail sent up with the case, the demonstration is so clear that all doubt is removed; but, of course, it is impossible to adequately present that demonstration by mere written words. This explanation also accords with practically all of the testimony of the other witnesses in the case. The shoe was found upon the main rail, between the two rear wheels of the tender; there was flesh, and a part of the stocking, crushed, upon the main rail; the plaintiff was entirely outside of the rails when the tender stopped,— all of which facts are utterly inconsistent with the plaintiff’s claim that the foot was crushed between the guard rail and main rail.

*628But there is one other fact which makes the plaintiff’s contention quite incredible. If it were possible that the foot was crushed between the guard rail and the main rail, then the pressure marks on the shoe demonstrate that the whole right leg must have been in front of the wheel, and would •infallibly have been run over, and his body dragged under the tender; whereas, in fact, the plaintiff received no injury save the cutting off of the flesh on the bottom of his foot, and was not under the tender when it stopped, but outside of the rails.

To sum up: The theory that the foot was caught under the wheel of the tender on the main rail, beginning at the heel, satisfies all the oral evidence, as well as the mute evidence of the shoe itself; while the theory that the foot was •caught by the guard rail is not testified to by any witness, and is entirely at war with every established fact in the case.

Serious as the plaintiff’s injury, suffered while attempting to perform his duty, undoubtedly was, we are compelled to say that a verdict that his foot was caught between the guard rail and the main rail is unsupported by the evidence and cannot be sustained.

By ilia Oourt.— Judgment reversed, and action remanded for a new trial.