#### Zimmer, Appellant, vs. Fox River Valley Electric Railway Company, Respondent.

*December 17, 1904*

January *10, 1905.*

*Street railways: Injuries to passengers: 'Negligence: Second, trial: Law of the case: Evidence: Experiments. ■*

1. Where on a second trial after reversal on appeal, the evidence produced on the issue of defendant’s negligence was substantially the same as on the first trial, except that defendant produced more evidence tending to refute its negligence, such evidence not being of the class, such, as some indisputable physical fact, which of itself rendered the evidence tending to show negligence necessarily incredible, the question upon the issue of actionable negligence is foreclosed by the former decision.

2. Testimony of experiments is competent if the conditions be sufficiently similar, so that the facts attending the experiment will fairly illustrate the point in issue.

3. When evidence of experiments is offered, it devolves upon the court, before receiving it, to determine, upon a proper showing, whether the conditions existing on the two occasions are *prima facie*essentially the same.

Appeal from a judgment of the circuit court for Outa-gamie county: Johw GoodlaND, Circuit Judge.

*Reversed.*

This case was before this court on a former appeal, which is reported in 118 Wis. 614, 95 N. W. 957. The action is brought to recover damages for a personal injury which *644plaintiff claims to have sustained through, defendant’s negligence. It appears that plaintiff at the time in question was. riding on one of defendant’s street cars in the city of Mcn-asha, and *that he*fell off *the*ear while *it*was passing around a curve in the tracks, receiving some injuries. At the conclusion of the testimony, defendant requested the court to direct a verdict in its favor upon the ground that no actionable negligence had been shown against the defendant, and upon the ground that plaintiff had been guilty of negligence contributing to produce the injury complained of. The court directed such a verdict, and awarded judgment of dismissal. This, ruling is alleged as error, and this is an appeal from the judgment dismissing the cause.

For the appellant there was a brief by *Eaton &*Eaton, and oral argument by *L. H: Eaton.*

*■J. 0.*Kerwin, for the respondent.

StebeciceR, J.

The direction of a verdict in defendant’s-favor is assigned as error upon the ground that the evidence tending to show actionable negligence by defendant was fully as strong upon this trial as upon the former. On the former, the trial court refused defendant’s request to take the case from the jury for want of any evidence tending to show the negligence charged, which ruling, upon an appeal to this court, was affirmed. Defendant then insisted that there was. not sufficient evidence to sustain a finding of negligence, and that plaintiff was guilty of contributory negligence. This court, in reviewing the evidence, found:

> Plaintiff had testified “to the effect that when he got onto. the car it was full; that he at first stood on the lower step and then on the upper step or platform, and held himself to. the iron railing — the brass railing ... on the back end, at the window, close to the door; that the car was overcrowded; that, when the conductor came around and collected fare, he put his hand in his side pocket and took out the money to pay his fare; that when he got at the curve the twist and fast driving around the curve threw him off and injured him. *645.. . . Other witnesses testified . ,. . to tbe effect that tbe plaintiff fell off tbe rear platform, bead first, just as tbe ■car got past tbe curve, and tbe car was running perhaps five miles an hour, and as it came to this curve it gave a twist and thi*ew him off; . . . that tbe car was overloaded; - • . that tbe car went onto tbe curve just as it came down tbe main track; that tbe curve was sharp, and tbe car naturally gave a twist. Another witness testified . . . that as tbe car struck the curve it gave a very sudden lurch, and turned very sharply; tbe back end of the car came in view very suddenly; that tbe car came about'tbe usual speed for it on Main street; that be did not notice any slackage at all; that it seemed to run unusually quick.”

After other testimony of like import bad been adverted to, tbe court observed:

> “Viewing such testimony in tbe most favorable light it will legitimately bear, we are unable to say, as a matter of law, that tbe finding of tbe jury that tbe injury to tbe plaintiff was caused by tbe negligence of tbe defendant is not sustained by tbe evidence.”

An examination of plaintiff’s evidence now before us confirms appellant’s contention that tbe evidence adduced upon this trial is substantially tbe same upon this question, and tends fully as strongly to show negligence as that at tbe former trial. It is true, defendant has produced more evidence tending to refute it; but in its effect it cannot be said to render tbe affirmative evidence of negligence incredible, for it is not of tbe class of evidence, such as some indisputable physical fact, which of itself renders tbe evidence tending to show negligence necessarily incredible. Tbe additional evidence served but to emphasize tbe conflicting statements of witnesses, which should be resolved by tbe jury in passing upon tbe issues, and in determining tbe credibility of tbe witnesses and tbe weight of tbe evidence. Under this state of tbe evidence, tbe question whether tbe ease should have been submitted to tbe jury upon tbe issue of actionable negligence was foreclosed by tbe former decision, and tbe ruling for a direction of tbe verdict was error. *Klatt v. N. C. Foster L. Co.**64697 Wis. 641, 73 N. W. 563; *Darcey v. Farmers’ L. Co.*98 Wis. 573, 74 N. W. 337; *Collins v.*Janesville, 111 Wis. 348, 87 N. W. 241, 1087.

It is argued that plaintiff, under tbe undisputed facts, must be held to have assumed the risk incident to his undertaking to ride on the car as he did. It seems the considerations submitted on this point go to the question of plaintiff’s negligence, as contributing to produce the injury. This question was also presented on the same state of the, evidence on the former trial and appeal, and the court held that the question was one properly requiring submission to the jury.

An exception to the reception of evidence of an experiment made by defendant is urged upon our attention. It appears that defendant’s employees made a test by passing over the track with the same car, with persons riding on the rear platform, running the car at the same speed it had attained before reaching the curve; but only seven persons were riding in the car and on the platform, instead of a car filled with passengers, with all the available platform space occupied, as claimed on the occasion of the accident. Testimony of experiments has been held competent if made under essentially the same conditions as attended the subject of inquiry. These conditions must be sufficiently similar, so that the facts attending the experiment will fairly illustrate the point in issue. When such evidence is offered, it devolves upon the court, before receiving it, to determine, upon a proper showing, whether the conditions existing on the two occasions' are *prima facie*essentially the same. *Emery v. State,*101 Wis. 627, 78 N. W. 145; 1 Greenleaf, Ev. 83 (16th ed.); Jones, Ev. § 413; *Burg v. C., R. I. & P. R. Co.*90 Iowa, 106, 57 N. W. 680.

*By the Court.*— Judgment reversed, and the cause is remanded for a new trial.

KerwiN, J., took no part.