Opinion
February 4, 1954 —
March 2, 1954.
APPEAL from and motion to review an order of the circuit court for Kenosha county: ALFRED L. DRURY, Circuit Judge. Affirmed.
For the appellant there was a brief by Cavanagh, Mittelstaed, Sheldon Heide of Kenosha, and oral argument by William A. Sheldon.
For the respondent there was a brief by La France, Thompson Zahn, attorneys, Alfred E. La France of counsel, and John F. Thompson, guardian ad litem, all of Racine, and oral argument by Mr. Alfred E. La France and Mr. Thompson.
The facts in this case are set forth in the companion case of Lind v. Lund, ante, p. 232, 63 N.W.2d 313. The new trial was ordered on May 27, 1953, in the action brought by Charles A. Lund and his wife, Julia, against Montgomery Ward Thorne and was tried with the companion case.
The plaintiff Lund and his insurance carrier appeal from, and the defendant Thorne and his carrier move to review, the order. The latter move also in the alternative that if a new trial be directed it shall be had only for the purpose of comparison of negligence between Lund and Thorne.
The new trial was ordered upon the ground that since some of the answers of the verdict had been changed by the court it appeared that the comparison of negligence made by the jury was not made upon a proper basis. As is apparent from what is said in our opinion in the companion case and from our conclusions expressed therein, the same situation still exists. Since the issues of negligence as they concern the parties to this action have been fully tried and determined, only the issue of comparison of negligence as between Charles A. Lund and Montgomery Ward Thorne should be submitted to the jury upon the new trial.
By the Court. — Order affirmed. The new trial will be had only upon the issue of comparison of negligence in accordance with this opinion.