Wolfgram v. Town of Schoepke

• Decision Date: 18 October 1904
• Citation: 123 Wis. 19,100 N.W. 1054
• Parties: WOLFGRAM v. TOWN OF SCHOEPKE.
• Court: Wisconsin Supreme Court

123 Wis. 19

100 N.W. 1054

WOLFGRAM

v.TOWN OF SCHOEPKE.

Supreme Court of Wisconsin.

Oct. 18, 1904.

Appeal from Circuit Court, Oneida County; W. C. Silverthorn, Judge.

Action by Herman Wolfgram against the town of Schoepke. From an order denying plaintiff's motion to correct the special verdict and for a judgment thereon he appeals, and from an order granting a new trial defendant appeals. Plaintiff's appeal dismissed. Order reversed on defendant's appeal.

Action for personal injuries from a hole in a country highway, left by the town authorities in original construction by merely covering same with poles. Special verdict of 20 questions returned by jury, finding all material facts in favor of the plaintiff, except that question No. 16, “Was plaintiff guilty of any want of ordinary care which contributed to injury he received?” was answered “Yes.” Plaintiff produced affidavits of all 12 jurors to the effect that all the jurors agreed that plaintiff was not guilty of any want of ordinary care, and that the insertion of the answer “Yes” instead of the word “No” was a mistake. The foreman, agreeing with these facts, states that he intended to write answer to the sixteenth question so as to find that said plaintiff was not guilty of any want of ordinary care which contributed to his injury. Upon these affidavits the plaintiff moved, first, that the answer “Yes” to the sixteenth question be stricken out, and the answer “No” be inserted in lieu thereof, and for judgment upon the verdict as so amended, basing the request also on the contention that there was no evidence to sustain the affirmative answer to that question. That motion was denied, from which denial the plaintiff appeals. Thereupon plaintiff moved on minutes and said affidavits for a new trial. Defendant moved to strike out jurors' affidavits. The court entered its order reciting that the motion was based on a mistake in the verdict and on the lack of support from evidence, whereby it denied defendant's motion to strike out said affidavits, “excepting that said affidavits be received and considered only as tending to show that there was a mistrial by reason of a mistake by the jury in writing the answer to question No. 16,” but rejecting said affidavits in as far as they “tend, generally, to impeach or contradict said special verdict.” The court entered further order granting plaintiff's motion to set aside the verdict and awarding a new trial, no costs being imposed on either party. From that order the defendant appeals.John Barnes, for appellant.

A. W. Shelton, for appellee.

DODGE, J. (after stating the facts).

There can be no doubt that the order denying plaintiff's motion to correct the verdict and enter judgment in his favor is excluded from those which are appealable by section 3069, Rev. St. 1898. Its appealability is contended for under subdivision 1 of that section, and, obviously, no other can have application. But, however much it may affect a substantial right, as pointed out in Murphy v. Weil, 86 Wis. 643, 57 N. W. 1112, it did not determine the action, nor prevent a judgment from which the plaintiff might have appealed. If the court committed error in refusing to amend the verdict upon the affidavits of the jurors, that question plaintiff could have saved and brought before us for review upon an appeal from a judgment in favor of the defendant, which, doubtless, must have followed this verdict, as it reads. The non-appealability of such an order is, however, settled by Mills v. Conley, 110 Wis. 525, 530, 86 N. W. 203. Counsel for plaintiff takes issue with one statement made in that case, however, to the effect that an appeal from a similar order was sustained in Murphy v. Weil under the fourth subdivision of section 3069, as it existed at that time, but not at the time of the appeal in Mills v. Conley. That subdivision gave an appeal from any order “when it involves the merits of an action or some part thereof.” Counsel contends that appealability of the order in Murphy v. Weil was not predicated upon that subdivision, but upon subdivision 1, because the court said that the order “affected a substantial right.” This, however, was obviously no more than the use of the latter expression, albeit appearing in subdivision 1 as an equivalent for that above quoted from subdivision 4. If, however, Murphy v. Weil must, as plaintiff contends, be read to assert appealability of such an order under subdivision 1, it is effectively overruled by Mills v. Conley, which is clearly correct, for subdivision 1 does not give appealability to an order merely because it affects a substantial right, but only when it also, in effect, determines the action, and prevents a judgment from which an appeal might be taken. There is no escape from the conclusion that plaintiff's appeal must be dismissed.

Turning now to defendant's appeal from the order granting a new trial, we are confronted by the not unusual uncertainty as to the grounds on which it was awarded. That uncertainty is narrowed somewhat by the order itself, which declares the motion to have been urged, first, because of mistake in writing out answer to special verdict; and, secondly, because verdict was not supported by evidence. This second ground is still uncertain, for it is contended here, as also doubtless below, both that there was no evidence of contributory negligence, and that the evidence so preponderates against such fact that the court should, in its discretion, have set aside a finding of contributory negligence. Doubtless we should solve this uncertainty in favor of the former ground because of the nonimposition of terms, which raises a presumption that the court deemed the verdict perverse, if that view is reasonably possible in light of the evidence; for when a new trial is granted in the field of discretion it is so far in the nature of a favor to the moving party that the trial court should impose some reasonable terms as a condition. Mills v. Conley, 110 Wis. 530, 86 N. W. 203;Port Huron Co. v. Clements, 113 Wis. 249, 258, 89 N. W. 160;Giese v. St. Ry., 116 Wis. 69, 92 N. W. 356;Collins v. Janesville, 117 Wis. 415, 424, 94 N. W. 309;Second National Bank v. Smith, 118 Wis. 18, 24, 94 N. W. 664. We cannot, however, indulge that presumption here, for an examination of the record discloses some evidence from which conclusion of contributory negligence might be drawn, albeit contradicted, and that, too, so preponderantly as to warrant the trial court in deeming justice to require a new trial. The defect was an old excavation, approximately three feet square and three feet deep, in the course of a newly opened road. It was covered with split tamarack poles. A traveled track of disputed clearness and persistency passed around it, with wheel tracks from one foot to two and a half feet away. Its perceptibility from a wagon was affirmed and denied. The road was a new and poor one, over which plaintiff was driving for the first time, and in broad daylight, and was watching the road. We cannot say that reasonable minds might not differ as to whether the plaintiff saw or ought to have seen this peril, or exercised ordinary care in driving so close that his wheels cut into it. We must therefore conclude that, if the court did not act exclusively upon the mistake in writing answer to the special verdict, he granted the new trial because he believed the evidence to so preponderate against the finding as to make such order proper to guard against injustice. If he did so, we are not prepared to think there was any abuse of discretion, but that his order should be sustained, except in respect of the failure to impose terms on plaintiff.

It is, however, probably true that the new trial was granted because the court was convinced by the jurors' affidavits that the written verdict did not express the conclusion of the jury, and that the peril of injustice from entry of judgment for defendant was so great that, in exercise of the discretion vested in him, a new trial ought to be had. This view presents the question whether the affidavits of jurors could be received as evidence of the facts they state. The general rule is very ancient, and often reiterated, that the statements of...