Sparks v. Wisconsin Central Railway Co.

Marshall, J.

(dissenting). In my judgment the deceased was clearly guilty of contributory negligence in unnecessarily locating himself in the pathway of a car that might move to where he was on the track back of him.

At best, whether there was evidence to carry the question of contributory negligence to the jury is involved in doubt, looking, as we have to, at the record alone. Therefore, by a well known rule the decision of the trial court ought not to be disturbed.

Trial courts are in duty bound to meet such situations, as was met with in this case, frequently. They have been admonished, over and over again, to do so with judicial courage, and when in their judgment there is no reasonable doubt but that the reasonable inferences are all one way to act firmly, as the law requires, by directing a verdict. Finkelston v. C., M. & St. P. R. Co. 94 Wis. 270, 68 N. W. 1005.

While trial judges should scan a case, carefully, before *115taking it from the jury, when satisfied that there is no room in the evidence for reasonable minds to fairly differ as to the truth of the controversy they should do so without hesitation, and vigorous administration in that regard should be promoted by resolving, upon appeal, all reasonable doubts in favor of their decisions instead of viewing the cases from an original standpoint. That is the logic of our decisions. Powell v. Ashland I. & S. Co. 98 Wis. 35, 73 N. W. 573; LamYee v. State, 132 Wis. 527, 112 N. W. 425; Hein v. Mildebrandt, 134 Wis. 582, 115 N. W. 121.

The statutory rule referred to has been much dignified in recent years and has become so firmly and so beneficially intrenched in our jurisprudence that it must be assumed that, though it may be possibly overlooked now and then, or there may be reasonable difference as to when it does and when it does not apply, there is no disposition here to abrogate it or to minimize its effect in respect to speedy termination of litigation and the stability of judgments of trial courts.