Jones v. Chicago & Northwestern Railway Company

• Decision Date: 11 May 1880
• Citation: 5 N.W. 854,49 Wis. 352
• Parties: JONES v. THE CHICAGO & NORTHWESTERN RAILWAY COMPANY
• Court: Wisconsin Supreme Court

5 N.W. 854

49 Wis. 352

JONES v. THE CHICAGO & NORTHWESTERN RAILWAY COMPANY

Supreme Court of Wisconsin

May 11, 1880

Argued April 24, 1880

APPEAL from the Circuit Court for Dodge County.

The case is stated in the opinion.

Order reversed and cause remanded.

Harlow Pease, for the plaintiff, who was also the appellant.

For the respondent there were briefs by Wm. F. Vilas and Hall & Skinner, and oral argument by Mr. Vilas and Mr. Hall.

OPINION

DAVID TAYLOR, J.

This is an appeal from an order granting a new trial, upon motion of the respondent, founded upon the minutes of the court. The only point made by the appellant is that, the judge having upon the trial refused to order the plaintiff nonsuited on the motion of the respondent, upon the evidence offered by the plaintiff, on the ground that there was some evidence given on his part which sustained the allegations of the complaint, the case was thereupon submitted to the jury upon the plaintiff's evidence, the respondent offering none on its part, and the jury, under the instructions of the judge, having rendered a verdict in favor of the plaintiff, it was error to grant a new trial, there being some evidence in the case tending to prove the plaintiff's cause of action, and which it was proper the court should submit to the jury. In other words, if the court on the trial refuses to nonsuit the plaintiff, upon the ground that there is some evidence tending to prove the plaintiff's cause of action, it cannot afterwards set aside a verdict for the plaintiff and grant a new trial because in the opinion of the trial judge the verdict is against the weight of evidence, or the evidence is in his opinion too slight to sustain the verdict.

If upon the record in this case, we should infer that the learned circuit judge set aside the verdict and granted a new trial because he thought the evidence was insufficient to sustain it, we do not see how we could reverse his decision upon that ground. It does not follow by any means that because there is some evidence in the case tending to prove the plaintiff's cause of action, and a verdict is rendered in his favor, the trial judge has no power to grant a new trial because he is dissatisfied with the finding of the jury upon such evidence. The establishment of such a rule would prevent a new trial in any case upon the ground that the verdict was against the weight of evidence. It can make no difference with the rule that all the evidence in the case was offered on the part of the plaintiff.

If the plaintiff gives any evidence to support his claim, the case must be submitted to the jury, although in the opinion of the trial judge it may be insufficient to sustain a verdict, or the decided weight of evidence is for the defendant. In such case this court has repeatedly said that it is the duty of the court to submit the questions of fact to the jury, under proper instructions, and take their verdict thereon. Beveridge v. Welch, 7 Wis 465; Johnston v. Hamburger, 13 Wis. 175; Kuehn v. Wilson, 13 Wis. 104; Dodge v. McDonnell, 14 Wis. 553; Sutton v. Town of Wauwatosa, 29 Wis. 21; Mountain v. Fisher, 22 Wis. 93; Reynolds v Graves, 3 Wis. 416; Douglass v. Garrett, 5 Wis. 85; Colby v. Town of Franklin, 15 Wis. 311; Jarvis v. Hamilton, 19 Wis. 187; Ewen v. Railway Co., 38 Wis. 613.

Many other cases in this court might be cited showing the rule as above stated. It is clear, from the cases above cited, that upon the question of nonsuit the court cannot consider upon which side the evidence preponderates, but must, in all cases, submit that question to the jury; and it would necessarily follow that if the court cannot set aside a verdict in favor of the plaintiff in any case when he is required to submit the question of evidence to the jury, no verdict could be set aside as against the weight of evidence; and yet we find the rule is equally well established, that the trial court may set aside a verdict because it is against the weight of evidence, as that it may not grant a nonsuit because the weight of evidence is against the plaintiff. In Van Valkenburgh v. Hoskins, 7 Wis. 496, this court decided that it would not interfere to reverse the order of the circuit court granting a new trial upon the evidence, unless there is manifestly a gross abase of discretion. Justice COLE, in delivering the opinion, says:

"It is true, the question before the jury was, whether the sale of the goods in controversy by Solomon & Somlander to the appellant was fraudulent and void as to their creditors; and this question of fact it was the peculiar province of the jury to determine.

"In the present case a great amount of testimony was introduced on that point, from which the jury were led to the conclusion that the sale was valid. The circuit court, being dissatisfied with the result, set the verdict aside, and ordered a new trial. The circuit courts have an undoubted right, and it is their duty, to grant new trials where the verdict of the jury is manifestly against the weight of testimony and the clear justice of the case. In passing upon applications for new trials the law requires the circuit court to exercise an enlightened judgment and sound legal discretion. When this is done, this court will not interfere, as we have repeatedly decided."

In the case of Lewellen v. Williams, 14 Wis. 687, 693, the late Chief Justice DIXON, upon the question of appeals from orders granting or refusing new trials, says; "The exercise of a sound discretion in such matters often depends upon a variety of facts and circumstances which cannot be described on paper and brought before the appellate tribunal with their original force and influence, and which no one but the judge before whom the case was tried can fully and properly estimate. Many of these facts and circumstances...