John v. Pierce

• Decision Date: 07 February 1922
• Citation: 186 N.W. 600,176 Wis. 220
• Parties: JOHN v. PIERCE.
• Court: Wisconsin Supreme Court

176 Wis. 220

186 N.W. 600

JOHN

v.PIERCE.

Supreme Court of Wisconsin.

Feb. 7, 1922.

Appeal from Circuit Court, Milwaukee County; John J. Gregory, Judge.

Action by August F. John against Frederick L. Pierce. Verdict for defendant. From an order setting aside the verdict and granting a new trial, defendant appeals. Affirmed.

Rosenberry, J., dissenting.

For opinion on former appeal, see 172 Wis. 44, 178 N. W. 297.

This is an action brought by plaintiff to recover damages for personal injuries sustained by him as the result of an automobile collision which occurred on one of the highways in Waukesha county on the 18th day of August, 1918. Plaintiff was riding as an invited guest in the automobile of one William B. Johnson, who was at the time driving the car. The Johnson car was proceeding in a westerly direction, and at a curve in the highway they met defendant's car, which was being driven by his daughter. Defendant's car was on the north or left-hand side of the road, and, according to the testimony on behalf of the plaintiff, was approaching at a speed of 30 miles an hour. The testimony on behalf of the plaintiff is to the effect that when Johnson discovered the approaching Pierce car it was then within a distance of 75 feet. Johnson, perceiving that the Pierce car was on the north side of the road, and, fearing that he could not avoid a collision by keeping his car to the right, suddenly turned it to the left. The Pierce car was turned to the right, and a collision occurred on the south side of the highway. This case was here upon a former appeal (172 Wis. 44, 178 N. W. 297) from a judgment in plaintiff's favor; the same having been rendered upon a special verdict of the jury, which found the driver of the defendant's car guilty of negligence and absolved Johnson, plaintiff's host, from contributory negligence in turning to the left. The judgment was reversed upon that appeal and remanded for a new trial. Upon the second trial the jury returned a special verdict by which it was found that the driver of the defendant's car was not negligent, and that Johnson, the driver of the car in which plaintiff was riding, was negligent.

The plaintiff moved to set aside the verdict on numerous grounds. The trial court set aside the verdict and granted a new trial, upon condition that plaintiff pay the costs. From such order granting a new trial the defendant brings this appeal.

Van Dyke, Shaw, Muskat & Van Dyke, of Milwaukee, for appellant.

Glicksman, Gold & Corrigan, of Milwaukee, for respondent.

OWEN, J. (after stating the facts as above).

[1] No reason was given by the trial court for setting aside the verdict and granting a new trial. In view of the fact that the order was made on condition that plaintiff pay the costs, the presumption is that it was granted by reason of errors committed by the jury, or because the verdict was considered contrary to the weight of the evidence, and in our consideration of the case we shall so assume. Costs could not have been imposed if the verdict had been set aside for errors of the court. Second National Bank v. Smith, 118 Wis. 18, 94 N. W. 664. The order, therefore, was a discretionary one, and will not be distributed by this court unless there appears to have been an abuse of discretion on the part of the trial court.

[2] The rule which governs this court in determining whether there was such an abuse of discretion, as stated in Kittner v. Railroad Co., 77 Wis. 1, 45 N. W. 815, is that, where opposite conclusions may reasonably be drawn from the evidence by different persons, the granting of a new trial on usual terms, upon the ground that the verdict was against the weight of evidence, is not an abuse of discretion.

So far as the negligence of the defendant is concerned, it is plain that different persons may reasonably draw opposite conclusions with reference thereto, and this is evidenced by the fact that the first jury found the driver of the defendant's car negligent, while the second jury exonerated her from negligence. That such is the state of the evidence concerning the defendant's negligence is not challenged by either party.

[3] A much...