Mellor v. Heggaton

• Decision Date: 12 May 1931
• Citation: 236 N.W. 558,205 Wis. 42
• Parties: MELLOR v. HEGGATON.
• Court: Wisconsin Supreme Court

205 Wis. 42

236 N.W. 558

MELLOR

v.HEGGATON.

Supreme Court of Wisconsin.

May 12, 1931.

Appeal from an order of the Circuit Court for Oconto County, granting a new trial;

Arold F. Murphy, Circuit Judge.

Action by W. R. Mellor against William S. Heggaton. From an order denying defendant's motion for judgment on the verdict and granting plaintiff a new trial, defendant appeals.--[By Editorial Staff.]

Affirmed.

This action was commenced June 4, 1929, to recover damages sustained by the plaintiff in the death of his wife, which occurred on the 21st day of July, 1928, while she was riding in defendant's automobile on United States highway No. 41, in Oconto county.

United States highway No. 41, at the place of the accident, runs north and south. The place of the accident was a little north of Sobieski Corners. Highway 41, at the time of the accident, was paved with concrete twenty feet wide, with rather newly constructed shoulders on each side. The defendant, just prior to the accident, was driving in a northerly direction at a rate of speed estimated to be between thirty-five and forty miles an hour. Just north of the corners made by the intersection of county trunk S with highway 41, the defendant attempted to pass a Chevrolet car which was proceeding in the same direction. The Chevrolet car was on its proper side of the road. The accident happened in the afternoon of a clear, dry day. No other car or traffic was involved in the accident. The defendant claimed that when he was about to pass the Chevrolet car he sounded his horn and turned to the left, increasing his speed somewhat. When he was about opposite the Chevrolet car on the left side of the road he observed that some loose gravel or pebbles had worked over the left side of the concrete and existed there for a width of substantially two feet. According to his testimony, when his left wheels ran into the gravel at the edge of the concrete, the gravel operated as roller bearings and he lost control of his car and went, with his left wheels, into the loose gravel. He apparently, in that situation, attempted to bring his car back upon the concrete. One witness testified that the car traveled about fifteen feet in the loose shoulder. It appears that, at the point where the defendant succeeded in bringing his car back upon the concrete, he lost control of it, proceeded across the concrete to the shoulder on the right, then turned his car back to the shoulder on the left, then turned his car back to the right, went into the ditch, where the car turned over and rolled into a field. As a result of the accident both the plaintiff's wife, Esther Mellor, and the defendant's wife were killed. The jury found that the defendant was not negligent in respect to keeping a proper lookout in respect to the rate of speed of his car, or in respect to control of his car. It also found that the deceased was not guilty of any negligence contributing to the accident, and assessed plaintiff's damages at $2,500. The usual motions were made after verdict with the result that defendant's motion for judgment on the verdict was denied and plaintiff's motion for a new trial was granted. From the order entered August 15, 1930, denying defendant's motion for judgment on the verdict and granting a new trial, the defendant appealed.

Allan V. Classon, of Oconto, for appellant.

Roger G. & Robert J. Cunningham, of Janesville (Otto A. Oestreich, of Janesville, and A. J. Whitcomb, of Milwaukee, of counsel), for respondent.

NELSON, J.

The defendant contends that the court erred in granting plaintiff's motion for a new trial and in not granting defendant's motion for judgment on the verdict as rendered, while the plaintiff contends that the case should be sent back to the circuit court, with directions to enter judgment for the plaintiff, after the amount of the damages has been assessed by a jury, because it conclusively appears from the evidence that the defendant was negligent, as a matter of law, in a situation to which the emergency rule was not applicable, since the defendant himself created the emergency.

In the view we take of this case, rather narrow issues are presented for our consideration.

Did the court err in granting a new trial?

Defendant contends that new trials are granted by trial courts, either in the exercise of a sound judicial discretion, when, in the opinion of the court, justice has not been done and when the verdict is against the weight of the evidence, or, as a matter of right, when prejudicial error has been committed, when the verdict is contrary to the evidence, contrary to the law, or when the verdict is perverse. Defendant further contends that the trial court granted a new trial in this action for reasons which were not within its discretion, and that therefore the action of the court in so doing is not subject to the rule that the discretion of the trial court in granting a new trial will not be disturbed on appeal unless there is a clear abuse of such discretion.

[1] We do not believe that the rule mentioned has any such narrow application. The granting of new trials for whatever reason must rest largely in the first instance in the discretion of the trial court. While an order granting a new trial for reasons which are purely discretionary will not be disturbed unless there has been a clear abuse of discretion, substantially the same rule applies to the granting of a new trial for other reasons. Of course, the granting of a new trial for discretionary reasons is far less likely to be disturbed by this court.

[2] A careful consideration of the trial court's decision convinces us that plaintiff's motion for a new trial was granted both for discretionary reasons and also for reasons involving matters of right. At the outset of its opinion the court said: “When the jury returned its verdict in this case my first reaction was that a grave injustice had been done, and the passing of time and the reading of the very able briefs of counsel has not served to alter my opinion.” This statement was followed by a discussion of certain things which, the...