Tomberlin v. Chi., St. P. M. & O. Ry. Co.

• Decision Date: 06 February 1933
• Citation: 211 Wis. 144,246 N.W. 571
• Court: Wisconsin Supreme Court
• Parties: TOMBERLIN v. CHICAGO, ST. P. M. & O. RY. CO.

211 Wis. 144

246 N.W. 571

TOMBERLIN

v.CHICAGO, ST. P. M. & O. RY. CO.^a1

Supreme Court of Wisconsin.

Feb. 6, 1933.

Appeal from a judgment of the Circuit Court for Price County; G. N. Risjord, Circuit Judge.

Action by Roy Tomberlin against the Chicago, St. Paul, Minneapolis & Omaha Railway Company. From the judgment for plaintiff entered as directed by mandate of the Supreme Court, defendant appeals.--[By Editorial Staff.]

Appeal dismissed.

See, also, 242 N. W. 677;243 N. W. 208.

Action begun January 10, 1930; judgment entered June 18, 1932. Personal injury. This case was here upon a former appeal, reported in 208 Wis. 30, 243 N. W. 208. The cause was remanded and the trial court entered judgment in favor of the plaintiff as directed by the mandate of this court. From the judgment so entered the defendant appeals.W. T. Faricy, Warren Newcome, and Alfred E. Rietz, all of St. Paul, Minn., and Wilcox & Wilcox, of Eau Claire, for appellant.

W. K. Parkinson, of Phillips, for respondent.

PER CURIAM.

The defendant is here upon this appeal with the claim that it has been deprived of its constitutional right to a jury trial both under the state and federal Constitutions. This is supported by an argument that an essential element of such constitutional jury trial is that the trial judge passed upon the sufficiency of the evidence to sustain the verdict of the jury with respect to every issuable fact, including damages. Upon the trial the jury returned a verdict acquitting the plaintiff of contributory negligence and finding the defendant negligent and assessing the damages. Thereupon the defendant moved for a judgment notwithstanding the verdict and in the alternative for a new trial. Upon these motions the trial court filed a written opinion in which it held that the plaintiff was guilty of contributory negligence as a matter of law. Thereupon a formal order was entered as follows:

“(1) That the plaintiff's motion for judgment be and it is hereby denied.

(2) That the defendant's motions after verdict all be denied, except the motion for judgment of no cause of action notwithstanding the verdict, which is granted.

Let judgment be entered accordingly.”

[1] When the cause reached this court, the judgment entered pursuant to the order dismissing plaintiff's complaint was affirmed. Upon a motion for a rehearing this court was of the view that it had not applied the correct rule of law to the facts, which were in the main undisputed, and the judgment was reversed as to the plaintiff “and cause remanded with instructions to enter judgment in favor of the plaintiff upon the verdict of the jury.” The record having been remitted to the trial court in due course, thereupon the defendant moved the trial court as follows:

“(1) To vacate that portion of its order herein, dated June 21, 1930, in the words and figures following, to-wit:

‘(2) That the defendant's motions after verdict all be denied, except the motion for judgment of no cause of action notwithstanding the verdict, which is granted.

Let judgment be entered accordingly.'--and to now consider upon the merits the defendant's said alternative motions for new trial in the order and upon the grounds stated in said motion above referred to, which was filed by it on June 3, 1930.

(2) To now consider upon the merits, regardless of whether the Court vacates its said order dated June 21, 1930, each of the defendant's said alternative motions for new trial in the order and upon the grounds stated in said motion above referred to, which was so filed by it on June 3, 1930.”

The defendant then set out the specific grounds upon which it based its motions and then continued: “Defendant further moves the Court that, in the event that the Court should be of opinion that it is concluded and prevented by the mandate of the Supreme Court of Wisconsin herein, from granting any of the relief, or taking any of the actions hereinbefore requested and moved to be taken by defendant, that the Court, in its opinion and order entered herein, state that it would grant such relief if it were not so precluded and prevented from so doing, or state that it deems itself precluded and prevented from taking any action thereon because of the said mandate of said Supreme Court of Wisconsin.”

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