Leatherman v. Garza

• Decision Date: 07 June 1968
• Citation: 39 Wis.2d 378,159 N.W.2d 18
• Parties: Kenneth H. LEATHERMAN, Appellant, v. Isauro GARZA et al., Respondents. (Two notices of appeal).
• Court: Wisconsin Supreme Court

Page 18

159 N.W.2d 18

39 Wis.2d 378

Kenneth H. LEATHERMAN, Appellant, v. Isauro GARZA et al., Respondents. (Two notices of appeal).

Supreme Court of Wisconsin.

June 7, 1968.

Stewart & Peyton, Racine, Harold R. Sheets, Racine, of counsel, for appellant.

LaFrance, Thompson, Greenquist, Evans & Dye, Alfred E. LaFrance and Adrian P. Schoone, Racine, for respondents Boileau and State Farm Mutual.

BEILFUSS, Justice.

Three issues are presented for determination:

(1) Was the order granting a new trial defective?

(2) Was the plaintiff negligent as a matter of law?

(3) Is the evidence sufficient to sustain the jury's finding that the defendant Boileau was negligent?

The order granting the new trial (omitting formal parts) is as follows:

'1. That the verdict herein of September 28, 1967, be and the same is hereby set aside;

'2. That a new trial on the issue of apportionment of causal negligence only is hereby granted, the costs of the former trial to abide the outcome of the action because said verdict is contrary to law and unsupported by the evidence presented, and such new trial is required in the interest of justice,

'for the reason that the jury failed to find any negligence on the part of the plaintiff notwithstanding the testimony of the plaintiff himself as corroborated by the testimony of other witnesses that he left a position of safety on the south shoulder of State Trunk Highway 11 and walked northerly to the center of the paved portion of said highway, at a time and place when and which he knew to be a busy public thoroughfare accommodating motor vehicular traffic, thereby rendering the verdict absolving the plaintiff of negligence contrary to all of the evidence, since on the uncontradicted testimony the plaintiff was guilty of contributory negligence as a matter of law, requiring that the answers to Questions No. 5 and No. 6 of the verdict be and they hereby are changed from 'no' to 'yes' and Question No. 7 of said verdict must be re-answered by a jury at the new trial;

'and for that reason a comparison of such causal negligence of the plaintiff with that of the two individual defendants is thus required.

'3. That the damages awarded to the plaintiff by the jury are within the realm of reasonableness and no new trial on the issue of damages is required.'

The appellant contends this order for a new trial was defective because it did not sufficiently set forth the reasons for granting the new trial in the interest of justice. Where a trial court orders a new trial in the interest of justice the order must set forth the reasons for so doing in detail or incorporate by reference a memorandum decision that does so. Sec. 270.49(2), Stats.; Cary v. Klabunde (1961), 12 Wis.2d 267, 107 N.W.2d 142. ¹ However, sec. 270.49(1), Stats., provides new trials may be granted on any of four grounds: '(1) Errors in the trial; (2) verdict contrary to law or evidence; (3) excessive or inadequate damages; and (4) in the interest of justice.' State v. La Fernier (1967), 37 Wis.2d 365, 371, 155 N.W.2d 93, 96.

In the order quoted above, the trial court states three grounds for granting a new trial. The court states the verdict is (1) contrary to law, (2) unsupported by the evidence, and (3) that a new trial is required in the interest of justice. The order continues by explaining why the verdict is contrary to law and unsupported by the evidence, but nowhere does it detail the reasons for finding a new trial is required in the interest of justice. If the order were to stand or fall on the sufficiency of the trial court's detailing the reasons for a new trial in the interest of justice, the order would fall.

The trial court changed the jury's answer herein on the contributory negligence question on its belief that the plaintiff was negligent as a matter of law, not because it was required in the interest of justice. Consequently, the order must be viewed not as granting a new trial in the interest of justice, but as granting a new trial because the verdict was contrary to the evidence and contrary to law. As to these items, the appellant's contention that the order is defective is without merit. 'In all cases, with the exception of those in which a new trial is granted in the interest of justice, it is sufficient for the order granting a new trial to state the statutory grounds therefor.' State v. La Fernier, supra, at p. 371, 155 N.W.2d at p. 96.

The trial court substituted its answer for that of the jury's on the question of the plaintiff's contributory negligence. This action was a result of its conclusion that the plaintiff was contributorily negligent as a matter of law. In so doing the trial court notes both in its order and in its memorandum opinion that the plaintiff was negligent as a matter of law as 'he left a position of safety on the south shoulder of State Trunk Highway 11 and walked northerly to the center of the paved portion of said highway, at a time and place when and which he knew to be a busy public thoroughfare accommodating motor vehicular traffic.'

The proper test to applied in determining whether a jury's answer should be changed is 'whether there was any credible evidence which supported the jury's answer.' Home Savings Bank v. Gertenbach (1955), 270 Wis. 386, 392, 71 N.W.2d 347, 350, 72 N.W.2d 697; Wintersberger v. Pioneer Iron & Metal Co. (1959), 6 Wis.2d 69, 94 N.W.2d 136.

'There is credible evidence which, when reasonably viewed, fairly admits an inference supporting the jury's findings. That being true, neither the trial court nor this court has authority to change the jury's findings. Auster v. Zaspel, 270 Wis. 368, 71 N.W.2d 417.' Paul v. Hood (1955), 271 Wis. 278, 280, 73 N.W.2d 412, 414.

'A trial court is not justified in setting aside a verdict either in whole or in part and directing judgment if there is credible evidence to support the findings. The crucial question is whether the evidentiary facts are practically without dispute, whether these facts reasonably support the jury's conclusion of ultimate fact drawn therefrom. DeKeyser v. Milwaukee Automobile Ins. Co. (1941) 236 Wis. 419, 424, 295 N.W. 755.

'In Behling v. Wisconsin Bridge & Iron Co. (1914) 158 Wis. 584, (589) 149 N.W. 484, 486, the rule is stated thus:

"While a jury finding against the clear preponderance of the evidence, presents a case for consideration by the trial judge within his discretionary right to grant a new trial, he is not required to do so, nor to change the finding to accord with the greater evidentiary weight. The latter is proper only when the evidence is so convincing as to leave no room, in any reasonable view, for conflicting inferences. In that situation the real truth of the matter appears as matter of law, leaving no legitimate jury question." Thorp v. Landsaw (1948), 254 Wis. 1, 8, 35 N.W.2d 307, 311.

While this court has said that it gives great weight to a trial court's decision that a verdict must be changed as a matter of law, Rogers v. Brown (1941), 143 Wis. 472, 128 N.W. 64; Kansas v. Chicago, M. & St. P. Ry. Co. (1923), 180 Wis. 49, 192 N.W. 383, the action of the trial court will be set aside on appeal if there is credible evidence which supports the verdict. Delvaux v. Kewaunee G.B. & W. Ry. Co. (1918), 167 Wis. 586, 167 N.W. 438.

The crucial evidence of the plaintiff, Leatherman, concerning his actions just prior to the accident is undisputed. All of the other witnesses either did not know or had no recollection of the plaintiff's movements from the time the tractor-trailer arrived until after the collision. The respondents in no manner challenge the credibility of this testimony of Rev. Leatherman; nor is it inherently incredible. There is, therefore, no question as to credibility nor weight to be attached to conflicting testimony. Under these circumstances, whether the plaintiff was negligent as a matter of law depends upon whether conflicting inferences could be drawn and, if so, whether the one adopted by the jury could be arrived at by reasonable men in view of the facts and the law. Stated another way, if the credible evidence is undisputed but permits conflicting inferences, the one adopted by the jury must be accepted. It is...