Cary v. Klabunde
| Decision Date | 10 January 1961 |
| Citation | 107 N.W.2d 142,12 Wis.2d 267 |
| Parties | Roderick H. CARY, Appellant, v. Frederick C. KLABUNDE et al., Respondents. |
| Court | Wisconsin Supreme Court |
Whyte, Hirschboeck, Minahan, Harding & Harland, Milwaukee, Victor M. Harding, Walter P. Rynkiewicz, Milwaukee, of counsel, for appellant.
Swingen, Stern & Lenahan, William E. Johnson, Madison, for respondents.
Sec. 270.49(2), Stats., provides as follows:
'Every order granting a new trial shall specify the grounds therefor. In the absence of such specification, the order shall be deemed granted for error on the trial. 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. The court may grant or deny costs to either party. (Italics supplied.)
There is no question but that the instant order, which granted a new trial in the interest of justice, fails to comply with such statute because it fails to state the reasons in detail that prompted the court to make such order. This court has held in Alexander v. Meyers, 1952, 261 Wis. 384, 386, 52 N.W.2d 881, and Guptill v. Roemer, 1955, 269 Wis. 12, 20a, 68 N.W.2d 579, 69 N.W.2d 571, that, if the reasons for granting a new trial in the interest of justice are set forth in detail by the trial court in a memorandum opinion, the order itself will comply with the statute if it incorporates by reference such reasons stated in the memorandum opinion. This was not done in the order here appealed from.
Counsel for the defendant Klabunde have urged that we exercise our discretionary power under sec. 251.09, Stats., and grant a new trial in the interest of justice. We find it unnecessary to pass on the question of whether there would have been an abuse of discretion on the part of the trial court directing a new trial in the interest of justice, if a proper order complying with sec. 270.49(2), Stats., had been entered. For the purposes of our decision we will assume that there would have been none. However, this court should not exercise its independent discretion to direct a new trial in every instance where we would be compelled to find no abuse of discretion on the part of the trial court in attempting to direct a new trial in the interest of justice, but in which the order is found to be defective for non-compliance with sec. 270.49(2). Our discretionary power in this respect should be sparingly employed, and ought not to be invoked except in a situation where we are convinced that there has been a probable miscarriage of justice if the jury's verdict were permitted to stand. The instant case does not fall in such category.
We will restate such of the testimony as tends to support the verdict. The plaintiff Cary saw the approaching lights of the Kriska car when it was about three-fourths of a mile distant. The accident happened a short distance to the north of a small bridge. As Cary's car ascended the ramp of the bridge he decreased his speed by taking his foot off the accelerator. By then the oncoming Kriska car was being brought to a stop and Kriska had turned on his left directional signal lights. Cary then applied his brakes lightly so as to bring his car to a stop opposite the Kriska car and inquire of the driver as to what was the trouble. Cary testified that Kriska's headlights were on high beam and that such lights laid down a curtain beyond which he could not see. He also stated that he was blinded by such lights.
Cary further testified that as he was slowing down in order to stop opposite the Kriska car he suddenly saw the heifers coming toward him at a trot at a 45-degree angle from the right or east shoulder of the highway, but not yet on the pavement. Cary then applied his brakes as hard as he could, but was unable to avoid colliding with them. Four of the heifers were killed instantly and one died a few minutes later. Their weight varied from 250 to 500 pounds each. His car came to a stop almost at the point of impact, and there were skid marks extending back to the south from the rear wheels of the car a distance of 22 feet. Cary stated that when he first saw the heifers they were but 15 feet distant. However, the length of the skid marks, plus the fact that a few more feet must be added for reaction time, indicates that the heifers must have been further away than 15 feet when he first sighted them. Cary's car was in its own traffic lane at the time of impact, and the skid marks extended straight back to the south in such lane.
Kriska sighted the heifers before Cary did, and Kriska had stopped his car and turned on his directional lights in an attempt to alert...
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...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) ......
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