#### Hupfer, Administrator, Respondent, vs. National Distilling Company, Appellant.

*February 2*

February *23, 1906.*

*'Appeal and error: Direction of verdict: Experts: Qualification: Evidence: Competency: Photographs: Identification: Cross-examination: Redirect examination: Instructions to jury.*

1. Where, on a first appeal, a judgment in favor of plaintiff was reversed for erro-r, on a second appeal a judgment of nonsuit was reversed and a new trial ordered, and on the third appeal *307the evidence was close upon some material questions, it cannot he said, as matter of law, that there is error in refusing to direct a verdict in favor of defendant.

2. In an action for the death of plaintiff’s intestate, caused hy the bursting of a wooden tank containing distilling slops, plaintiff interrogated a witness called as an expert as to the liability of lactic acid in the slops percolating through the tank and corroding the iron hoops. *Held,*under the evidence, stated in the opinion, that the witness was not qualified to testify as an expert and that the admission of his testimony was error.

3. Where, on a former appeal, photographs were held improperly admitted in evidence because the evidence did not sufficiently identify the subject photographed, and, on a subsequent appeal, in view of the testimony on the second trial, it was held error to exclude such photographs, and on the instant appeal it appeared that the evidence tending to establish such identity was much more full and convincing than on the last previous trial, it was *held*that the photographs were properly admitted in evidence, and that there was no error in refusing to strike them out.

4. It is error to exclude answers to questions put on redirect examination explaining a witness’s testimony on a former trial, where the witness has been asked on cross-examination as to what was his testimony on such former trial.

5. Such error is cured by a subsequent offer, with the acquiescence of the court, to'allow such testimony to be given without objection and the declination of such offer.

*■6.*An instruction to the jury: “The burden of proof as to the second question and as to *every other question*of this verdict *except the last question*— being the one in regard to damages, — is upon the affirmative; that is to say, you will not answer any of these questions by ‘Yes’ unless you are satisfied by the preponderance or greater weight of all the evidence in the case that the fact or facts which you find by such affirmative answers are true and correct,” is misleading and erroneous, and equivalent to saying that upon the question of damages the burden of proof is not upon the party seeking to establish the affirmative, and is *held*not cured by specific instructions on the question of damages.

Appeal from a judgment of tbe circuit court for Milwaukee county: LaweeNOe W. Halsey, Circuit Judge.

*Reversed.*

Tbis action is brought to recover damages for tbe death of *308tbe plaintiff’s intestate September 13, 1899, caused by tbe bursting of a large circular tank or vat containing distilling slops. Tbis case bas been bere on two former appeals and tbe facts involved and tbe questions determined may be found in 114 Wis. 279, 90 N. W. 191, and 119 Wis. 417, 96 N. W. 809. At tbe close of tbis last trial tbe jury returned a special verdict to tbe effect (1) tbat Simon Ilupfer died September 13, 1899, on account of injuries sustained by tbe bursting of defendant’s slop vat.on said day; (2) tbat at tbe time of tbe bursting of said vat tbe boops on said vat were so rusted as to be defective and unfit for tbe purpose for wbicb tbey were-used; (3) tbat tbe defendant knew of sucb defective condition of said boops in time to bave remedied sucb defects before the-accident; (4) tbat tbe defendant .in tbe exercise of ordinary care ought to bave known of sucb defective condition of said boops in time to bave remedied same before tbe accident; (5) tbat sucb defective condition of said boops was tbe proximate cause of tbe injury to deceased; (6) tbat tbe' deceased,, Simon Ilupfer, was not guilty of any want of ordinary care wbicb contributed to tbe injury resulting in bis death;. (7) tbat tbey assessed tbe plaintiff’s damages at $4,000. From tbe judgment entered in favor of tbe plaintiff upon such-verdict for tbe amount stated, with costs, tbe defendant appeals.

For tbe appellant there was a brief by *O’Connor, Schmitz.*& *Wild,*and oral argument by *A. J. Schmitz*and *Robert Wild.*

*J oseph B. Doe,*for tbe respondent.

Cassoday, C. J.

1. Tbis case bas been bere upon two-former appeals. 114 Wis. 279, 90 N. W. 191; 119 Wis. 417, 96 N. W. 809. On tbe first appeal tbe judgment in favor of tbe plaintiff was reversed for error. Tbe second appeal was from a judgment of nonsuit, and tbe same was reversed and tbe cause was remanded for a new trial. It is now urged,. *309■among other things, that the trial court erred in refusing to direct a yerdiet in favor of the defendant on the merits. This ■claim was presented and to some extent considered on both -of the former appeals. The evidence is close upon some material questions, but it cannot be said, as a matter of law, that there was error in refusing to direct a verdict in favor of the -defendant. Nor can we say from the undisputed evidence that there was error in refusing to set aside the answers of the jury to the second, third, fourth, fifth, and seventh questions of the special verdict, and, when so amended, to enter judgment thereon in favor of the defendant.

The plaintiff’s witness, Mitchell, as a chemical expert, testified that he never had any experience or practical knowledge in ascertaining as to how thick a healthy and sound board or plank might be to permit lactic acid or slop containing lactic acid to penetrate it; that he never experimented to ascertain whether seventy-two one-hundredths of one per cent, of lactic acid contained in a fluid would seep through a healthy two-inch plank, and never made any experiment at all in that line; that he knew something about the seepage of lactic acid in dilution with aqueous infusion from actual experience; that as far as the wood was concerned and as far as water of that temperature was concerned, the slop mentioned would not seep more than water; that water of that temperature would have about the same amount of seepage; that the lactic acid would not add to the seepage quality through the wood appreciably ; and that he knew that water would not seep through a tub or vat constructed of sound three-inch staves tightly clasped together, so that it would percolate through the wood ■or leak appreciably. After so testifying the witness was allowed, against objection, to answer the question whether1, under the conditions described, the lactic acid in the slops would percolate or seep through the staves of such tub to any ■extent; and in giving such testimony he stated, in effect, that he knew there would be more or less seepage, and in case of *310tbe vat described and tbe character of tbe slops mentioned there would be an effect upon tbe hoops on account of such seepage and percolation, and that the hoops would be corroded or eaten thereby. Such testimony was upon a vital point in the case, and we are constrained to hold that the witness was not qualified to so testify as such expert, and hence that the ruling so complained of was error.

2. Error is assigned for admitting in evidence photographs of what the plaintiff claims to have been the same hoops which were around the tank at the time it burst, and for refusing, at the close of all the testimony, to strike such photographs from the record. The admission of such photographs has been one of the controverted questions from the beginning. On the first appeal it was held that the photographs were improperly admitted in evidence because the evidence did not sufficiently identify the hoops so photographed as the hoops in question. On the second appeal it was held to be error to exclude testimony tending to prove that four or five days after the accident the defendant's chief engineer and superintendent of machinery and apparatus, on the request of the plaintiff’s attorney, pointed out the hoops photographed, and stated that they were the same hoops which came from the broken tank. On the same appeal it was said by this court, in effect, that a comparison of the evidence of identification of the hoops photographed contained in the printed case on the first appeal with that on the second appeal showed “a very marked difference, not only in the specific facts of which testimony”' had been “given, but also in respect to the clearness and definiteness of evidence to facts which were in some degree suggested in the former case.” It was also stated that the trial court “was mistaken” in supposing that the decision of this court on the first appeal required that court to exclude the photographs, notwithstanding they were sufficiently identified, in the judgment of that court. Then, after considering the evidence bearing upon the question of such-identity *311and tbe advantages of tbe trial court over tbis court in determining sucb questions, it was said:

> “Tbe question of identification, as preliminary to tbe admissibility of tbe photographs, was, however, one for tbe court and not primarily for tbe jury, and, so far as it was a question of fact, tbe conclusion of tbe trial court upon tbe evidence must be given great weight upon appeal — substantially tbe same weight as is given that court’s findings upon other issues tried without, a jury.”

And again:

> “In view of tbe deference due to a deliberate conclusion by tbe trial court as to sufficiency of tbe identification, we might hesitate, even in tbe present case, to overrule sucb conclusion and bold it reversible error. ■ Eesolution of tbe doubt on that question is, however, not necessary, as reversal must result upon other grounds, and upon a new trial tbe positive identification by defendant’s engineer may substantially vary tbe situation.”

It is enough to say that upon tbis last trial tbe evidence tending to establish sucb identity was much more full and convincing than on tbe last previous trial; besides, there was one additional witness who bad not testified in tbe case before by reason of being absent in a distant territory. "We are constrained to bold that tbe photographs were properly admitted in evidence and that there was no error in refusing to strike them out.

3. Error is assigned for excluding testimony of the defendant’s superintendent. It appears that upon cross-examination tbe plaintiff’s counsel asked tbe witness as to what be testified, on tbe former trial before Judge Ludwig, as to tbe condition in which be found tbe slop vat when be examined tbe same with a knife. And be was then asked by defendant’s counsel on redirect examination whether at tbe time and in connection with such testimony be was asked bow be found tbe iron and whether be did not answer that be found it in good condition; and whether be bad not stated that tbe hoops were painted *312black and tbe staves brown; and tbat tbe tub bad been painted before, bnt be conld not tell when. But sucb questions were excluded; and tbe defendant’s counsel was not allowed to read tbe questions put to tbe witness nor tbe answers made by tbe witness for tbe purpose of explaining some of tbe testimony tbat tbe plaintiff’s counsel bad referred to as baving been given on tbe former trial before Judge Ludwig. It seems to be well settled tbat:

> “After a witness bas been cross-examined respecting a former statement made by bim, tbe party wbo called bim bas a right to re-examine bim to tbe same matter. Tbe counsel bas a right, upon sucb re-examination, to ask all questions which may be proper to draw forth an explanation of tbe sense and meaning of tbe expressions used by tbe witness on cross-examination, if they be in themselves doubtful, and also of tbe motive by which tbe witness was induced to use those expressions ; but be has no right to go further and to introduce matter new in itself, and not suited to tbe purpose of explaining either tbe expressions or the motives of tbe witness.” 1 Cresol. Ev. (15th ed.) § 467. See *Smith v. Milwaukee E. R. & L. Co., ante,*p. 253, 106 N. W. 829.

We must bold tbat tbe exclusion of sucb re-examination was error.

Counsel for tbe defendant also assigns a similar error because tbe court refused to allow tbe same witness to explain bis testimony given before tbe coroner and to' which bis attention bad been called on cross-examination by tbe plaintiff’s counsel. But tbe defendant is in m> position to insist upon sucb error, since at tbe close of tbe testimony counsel for the plaintiff offered, in open court, to allow tbe defendant’s counsel, if be desired, to read to the jury any of tbe testimony' of tbe witness so taken before tbe coroner, without any objection on bis part; and tbe court thereupon stated tbat, if there was anything in tbat record which tbe defendant’s counsel desired to read, be might read it; but tbe defendant’s counsel declined sucb offer.

*3134. Error is assigned because, after defining tbe burden of proof, tbe court charged tbe jury that:

> “The burden of proof as to tbe second question, and as to *.every’other'question*of this verdict *'except the last*question— .being tbe one in regard to damages, — is upon tbe affirmative; that is to say, you will not answer any of these questions by '‘Yes,’ unless you are satisfied by tbe preponderance or greater weight of all tbe evidence in. tbe case that the fact or facts which you find by such affirmative answer are true and correct.”

That was equivalent to saying that upon tbe question of ■damages tbe burden of proof was not upon tbe party seeking 'to establish tbe affirmative. Certainly such burden was not -on tbe defendant. Tbe portion of tbe charge quoted left tbe jury to infer that it was not on tbe plaintiff. Tbe whole purpose of tbe action was to recover damages. And in another portion of tbe charge tbe jury were told that under no circumstances could they “give tbe plaintiff damages in excess of $5,000.” Of course, tbe question whether damages were sustained was a question of fact to be determined by tbe jury 'from the evidence, and tbe burden of furnishing such evidence was on tbe plaintiff. We are constrained to bold that the portion of tbe charge thus quoted was misleading and hence erroneous. True, tbe court specifically charged the-jury on tbe question of damages, but that did not cure tbe ■error mentioned. We find no other question of sufficient importance to call for consideration.

*By the Gourt.*— By reason of tbe errors mentioned tbe judgment of tbe circuit court is reversed, and tbe cause is remanded for a new trial.