Lange v. Olson
Decision Date | 10 February 1925 |
Citation | 185 Wis. 657,202 N.W. 361 |
Parties | LANGE v. OLSON. |
Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Douglas County; Archibald McKay, Judge.
Action by Flora Lange against Ossian Olson. From an order denying defendant's motion for judgment on the verdict and granting plaintiff's motion to set aside verdict and for new trial, defendant appeals. Affirmed.
Personal injury. This action was brought by the plaintiff to recover for personal injuries sustained by the plaintiff under the following facts: The defendant was driving a Chevrolet touring car south upon Tower avenue just beyond the limits of the city of Superior. At the point where the accident occurred and for some distance upon each side, Tower avenue is paved for the width of nine feet in its center with concrete. On each side of the concrete is a gravel strip about six feet in width and just outside of the gravel upon each side is a ditch. The road is the main traveled highway leading to the cemetery to the south. The plaintiff and her husband were walking upon the roadway and had proceeded south from the end of the street car line for a distance of about a mile. They walked double file when there was no car coming. As the cars passed them, they walked in single file. Shortly before the accident, the plaintiff had looked back and had seen two cars coming from the north. Shortly thereafter, the second of these cars had turned to its left or to the east and passed the defendant's car and then almost at once had turned sharply over to the right to permit a car coming from the south to pass. Defendant's car was meeting a car from the south at the time of the accident. Defendant slowed down his car to a speed of about eight miles per hour. The defendant proceeded southerly. The plaintiff and her husband were walking single file. The defendant was a few feet behind the car which he passed when the plaintiff stepped from behind her husband to his side toward the concrete without looking back. She stepped near enough to the path in which defendant's car was traveling so that she was struck on the side of the left hip by the right-hand side of the right front fender of defendant's car, causing the injury. She fell against the left shoulder of her husband.
The jury found that the defendant's automobile injured the plaintiff; that the defendant was not in the exercise of ordinary care in the operation of his automobile at and immediately prior to the injury; that the defendant's failure to exercise ordinary care was the proximate cause of the injury; and also found the plaintiff guilty of contributory negligence, which proximately contributed to cause her injury, and assessed the plaintiff's damages at the sum of $4,000. Upon motions after verdict, the court entered an order denying the defendant's motion for judgment on the verdict and granting the plaintiff's motion to set aside the verdict and for a new trial, upon condition that plaintiff pay the costs of the former trial and upon the ground and for the reason that the verdict of the jury in its answer to the fourth question of the special verdict (contributory negligence) is contrary to the evidence. From that order, the defendant appeals.Hanitch, Hartley & Johnson, of Superior, for appellant.
Grace, Fridley & Crawford, of Superior, for respondent.
ROSENBERRY, J. (after stating the facts as above).
[1] By section 2878, Wis. Stats., it is provided that a judge before whom an issue is tried may in his discretion set aside the verdict and grant a new trial because the verdict is contrary to the evidence and for other enumerated reasons. From an early day it has been held that orders granted by a trial judge in the exercise of the discretion conferred upon him will not be reversed by this court even if it is of the opinion that the circuit judge has erred, unless there has been a clear or gross abuse of discretion. Van Valkenburgh v. Hoskins, 7 Wis. 496.
[2] There is an exception to this rule. Where a verdict has been set aside or approved and it is clear that the trial court proceeded upon an erroneous view of the law, his determination will be reversed. Mullen v. Reinig, 68 Wis. 408, 32 N. W. 293;Duffy v. C. & N. W. Ry. Co., 34 Wis. 188.
It is contended here, not only that the trial court was in error in holding that the verdict was contrary to the evidence, but that the evidence in favor of the finding of the jury upon contributory negligence is supported by the overwhelming weight of the testimony, and that a contrary finding could not be sustained, and that therefore there was an abuse of discretion...
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...is ‘clearly wrong’ if the jury verdict is supported by ‘any credible evidence.’ " (quoted source omitted)); and Lange v. Olson, 185 Wis. 657, 661, 202 N.W. 361 (1925) ("An order which grants or refuses a new trial will not be disturbed in this court except in a clear case of an abuse of dis......
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