Smith v. Taylor-Button Co.

• Decision Date: 05 December 1922
• Citation: 190 N.W. 999,179 Wis. 232
• Parties: SMITH v. TAYLOR-BUTTON CO.
• Court: Wisconsin Supreme Court

179 Wis. 232

190 N.W. 999

SMITH

v.TAYLOR-BUTTON CO.^a1

Supreme Court of Wisconsin.

Dec. 5, 1922.

Appeal from Circuit Court, Milwaukee County; E. T. Fairchild, Judge.

Action by Abbie Smith, by guardian, against the Taylor-Button Company. From an order granting a new trial and requiring plaintiff to pay the taxable costs of a former trial, defendant appeals. Reversed and remanded with directions to dismiss complaint.

This action was brought to recover damages for personal injuries sustained by the plaintiff, a child nine years of age, who at the time of the accident was riding in an automobile driven by her father. Defendant's truck, loaded with coal, was proceeding west on North avenue in the city of Milwaukee. The automobile in which plaintiff was riding was proceeding east on the same street. The truck turned south into Fifty-First street, “cutting the corner” in the operation. The automobile crashed into the truck with sufficient force to shove it sidewise, a distance of from two to six feet. At the time of the collision the front part of the truck was about on a line with the south curb line of North avenue. There was some testimony that it was shoved up to the curb at the southeast corner of the intersection. The following special verdict was returned by the jury:

Question 1: Was the fact that the defendant's driver did not turn to the right of the center of the intersection of Fifty-First street and North avenue a proximate cause of the injury to Abbie Smith?

Answer: No.

Question 2: At what sum do you assess Abbie Smith's damages?

Answer: None.

Upon a motion for a new trial the court filed the following decision:

“I am of the opinion that a judgment meeting the requirements of justice cannot be entered on this verdict. The evidence is such that, had the jury fixed a fair sum as damages in answer to the last question, it would have been my duty to change the answer to the question of proximate cause and order judgment for plaintiff. In other words, I ought to have submitted only the question of damages to the jury. The record being as it is, it is necessary for me to grant a new trial. The plaintiff's attorney will prepare the order, providing for the payment of costs of former trial by plaintiff.”

An order granting a new trial and requiring plaintiff to pay the taxable costs of the former trial was subsequently entered. From this order the defendant appealed.

Lines, Spooner & Quarles, of Milwaukee, for appellant.

H. J. Killilea and Thomas E. Torphy, both of Milwaukee, for respondent.

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

[1][2] It is contended by the respondent that the order was discretionary and was granted because the court felt that justice had not been done. It is claimed that this is indicated by the fact that the order requires the respondent to pay the costs of the former trial. It is well settled that, where a new trial is ordered because the court is not satisfied with the verdict as being against the weight of the evidence, costs should be imposed; but where the motion is granted, because the verdict is perverse or entirely unsupported by the evidence, or because the court misdirected the jury or committed other prejudicial error, costs should not be imposed. Pound v. Roan, 45 Wis. 129;Smith v. Lander, 48 Wis. 587, 4 N. W. 767;Schweickhart v. Stuewe, 75 Wis. 157, 43 N. W. 722;Schraer v. Stefan, 80 Wis. 653, 50 N. W. 778. Because of this rule there is a presumption that when the court imposes costs in an order granting a new trial, the new trial is granted pursuant to the discretionary powers of the court. Second National Bank v. Smith, 118 Wis. 18, 94 N. W. 664. This presumption, however, is not conclusive, and obtains only where the contrary does not appear by the record.

[3][4] In the instant case the trial judge stated his reason for granting a new trial. It appears that the court considered that the failure of defendant's truck to keep to the right, when turning onto Fifty-First street, constituted a proximate cause of the injury as a matter of law, and that the amount of the damages was the only question for the jury. The reason which actuated the court to grant the new trial thus plainly appearing, the imposition of costs must be regarded as error, rather than a...