Opinion
September 14, 1944. —
October 10, 1944.
APPEAL from an order of the circuit court for Milwaukee county: AUGUST E. BRAUN, Circuit Judge. Reversed.
For the appellant there was a brief by Lines, Spooner Quarles, attorneys, and Howard A. Hartman and Irving T. Babb of counsel, all of Milwaukee, and oral argument by Mr. Hartman.
For the respondent the cause was submitted on the brief of Victor A. Napieralski and Sydney C. Charney, both of Milwaukee.
Action commenced July 27, 1941, by Emily Dowd for damages sustained as a result of a collision between the automobile in which she was riding and an automobile driven by defendant.
The action was tried to the court and jury. By their special verdict, the jury found defendant free from negligence. On motions after verdict, the court granted a new trial in the interests of justice. Defendant appeals.
The case arose out of a collision which occurred on January 7, 1940, between an automobile driven by the defendant in a southerly direction on North Twenty-Sixth street and an automobile operated by Stanley Dowd, in which plaintiff was a passenger, traveling in a westerly direction on Wells street at an intersection of those streets in the city of Milwaukee.
Defendant testified that North Twenty-Sixth street on which he was driving was slippery and icy; that he had been driving about twenty miles an hour as he approached the intersection; that he brought his car to a stop about fifteen feet north of the north crosswalk on Wells street. He looked both to the west and then to the east and seeing no cars approaching, proceeded into the intersection. He further testified that his view was obstructed by an apartment building on the northeast corner of the intersection so that he could only see fifteen feet to the east on Wells street. Having proceeded in low gear to the crosswalk, he testified that he saw the Dowd car approaching from the east about thirty feet away, traveling at a speed of about twenty-five miles per hour. He then entered the intersection and Dowd's car coming from the east struck the left-hand side of the car after it had reached approximately the middle of the intersection. The afternoon of the first day of the trial, at the suggestion of the court, defendant went back to the scene of the accident and made further observations. Having thus refreshed his recollection he changed his testimony and stated that he now estimated that the Dowd car was approximately fifty-seven feet east of the east crosswalk on Wells street when he made his observation at the crosswalk. He also testified that there was no obstruction to his view to the east and he could see a block or more in that direction.
Dowd testified that he was traveling at about fifteen miles per hour on Wells street. When he reached a point about fifteen feet east of the crosswalk, he testified that he observed defendant's car for the first time between sixty-five and seventy feet north of the intersection; that he continued across the intersection without applying his brakes, swerving a little to the southwest; and that defendant's car struck his right front fender. The jury found defendant free from negligence as to management and control of the car and lookout; found plaintiff guilty of contributory negligence as to lookout but that such negligence was not an efficient cause of the accident. The jury assessed damages of plaintiff at $400.
The trial court granted a new trial in the interests of justice pursuant to sec. 270.49, Stats., which provides in part in sub. (2) that "no order granting a new trial in the interest of justice shall be valid or effective, unless the reasons that prompted the court to make such order are set forth in detail therein."
An application for a new trial addressed to the sound legal discretion of the trial court should be granted only when in the consideration of the case, a substantial right of a party has been so dealt with that it has not been given its proper weight, thus making it reasonably clear that the trial was not a fair one. The general conduct of a trial is largely within the discretion of the judge presiding, and serious mistakes as the case proceeds due to errors in rulings or because of prejudicial events intervening to such an extent as to unfairly influence the result may warrant if not require a new trial in the interest of justice. Slight evidence, however, may create a jury question and be sufficient to require that the ultimate finding of fact be made by the jury. And still a new trial may be granted if the overwhelming evidence is against the finding of the jury. On the other hand, the law contemplates but one fair trial.
The fact that the trial judge in a jury case may not entirely concur in the jury's verdict, if there is an absence of substantial incidents of a misleading nature clearly indicating that in the interest of justice there should be a re-examination of an issue of fact, does not give occasion for granting a new trial. In granting a new trial in the interests of justice, a cause must exist, and in its order the court is to set forth the reasons prompting it to make such order "in detail therein." In the event a new trial is granted, in the absence of such specification the order shall then "be deemed granted for error on the trial." Sec. 270.49 (2), Stats. Such an order cannot rest upon the assumption of a possibility that a different jury might reach a different conclusion. In reading the order appealed from after studying the record, we are impressed with the lack of a sufficient reason in law for the ruling of the trial court. A jury question clearly existed, and the question was properly submitted. The verdict is sustained by ample evidence. There is no room for the assertion of the existence of overwhelming evidence against the finding. There appears to be no doubt in the opinion of the learned trial judge that the driver of the car in which respondent was riding was guilty of negligence. In the judgment of the jury the respondent and the appellant were each free from negligence contributing to the respondent's injury.
The amount of damage suffered by respondent as found by the jury, even if to be considered at all as somewhat inadequate, does not establish perversity and under the circumstances of this case does not supply a reason for setting aside the verdict and granting a new trial.
By the Court. — Order reversed, and cause remanded with directions to enter judgment in defendant's favor.