Henry v. La Grou

• Decision Date: 05 November 1929
• Citation: 227 N.W. 246,200 Wis. 110
• Parties: HENRY v. LA GROU ET AL.
• Court: Wisconsin Supreme Court

200 Wis. 110

227 N.W. 246

HENRY

v.LA GROU ET AL.

Supreme Court of Wisconsin.

Nov. 5, 1929.

Appeal from the Circuit Court for Racine County; E. B. Belden, Circuit Judge. Reversed.

Action begun June 25, 1928. Judgment entered January 12, 1929.

Action to recover damages sustained by plaintiff in a collision between his automobile and defendant's street car. Plaintiff appeals from a judgment dismissing his complaint after the court set aside and changed certain answers in a special verdict, upon which plaintiff would have been entitled to recover.

The jury found, as to defendant's motorman, that he was negligent in the following respects, viz.: (1) In operating the street car at a rate of speed in excess of 15 miles per hour; and (2) at a speed which was greater than was reasonable and proper under the circumstances; (3) in not keeping a proper lookout; and (4) in not keeping his car under proper control. The jury also found that the collision was a natural and probable result of each of such negligent acts or omissions of the motorman.

As to plaintiff, the jury found that (1) he did not fail to use ordinary care in handling his automobile; (2) that the collision did not occur as a natural and probable result of any such failure on plaintiff's part; and (3) that plaintiff ought not to have foreseen that a collision with some vehicle might naturally and probably result from the handling of his automobile as he did.

On motions after verdict, the court set aside all of the jury's findings as to the motorman's negligence, excepting that the speed was in excess of 15 miles per hour; and found that the motorman was not negligent in the respects found by the jury, excepting as to speed, and that the collision did not result from any negligence of the motorman.

Likewise the court changed the jury's answers in relation to the plaintiff's conduct, so as to find (1) that he did fail to use ordinary care in handling his automobile; (2) that the collision occurred as a natural and probable result of such failure; and (3) that plaintiff ought reasonably to have foreseen that a collision with some vehicle might naturally and probably result from his handling his automobile as he did.Wilbershide, Baumblatt & Weisman, of Racine, for appellant.

Simmons, Walker & Wratten, of Racine, for respondents.

FRITZ, J.

The only question presented on this appeal is whether there is any credible evidence to support the verdict which the jury returned. Counsel recognize the well-established proposition that, when there is any credible evidence, which, under any reasonable view, will admit of an inference either for or against the plaintiff, then the rule that the proper inference to be drawn therefrom is a question for the jury should be firmly adhered to. However, defendant's counsel contend that, in this case, the plaintiff's testimony is contrary to certain physical facts and reasonable probabilities, and hence is incredible, and that therefore the trial court was warranted in changing the jury's verdict, because of another rule, viz., that, when the evidence is not susceptible of reasonable conflicting inferences, a motion for nonsuit or direction of a verdict should be granted as a right of the moving party.

[1] Upon reviewing the evidence, we do not find any such conflict between the testimony of plaintiff and the probable physical facts and reasonable probabilities as to render his testimony incredible as a matter of law. Although there is considerable conflict in the evidence, the jury could reasonably infer from the testimony of plaintiff, and other evidence, that the collision occurred under the following...