Giese v. Milwaukee Electric Railway & Light Co.

It is argued by appellant’s counsel that there was no evidence to support the finding of contributory negligence, and that it was the duty of the court to change the answer of the sixth question from “Yes”., W “ETo,” and enter judgment for plaintiff. On the other hand, the respondent attempts to justify the order for a new trial on the ground that numerous errors were committed, by the court in its rulings during the trial. It appears, however, by the form of the order granting a new trial, that these supposed errors were not passed upon by the court below in granting a new trial, and hence they will not be passed -upon by this court upon appeal.

It is well settled that a court cannot be compelled to state the ground of its ruling in ordering a new trial, and that the fact that no ground is stated raises a presumption (nothing appearing in the record to the contrary) that the new trial is granted in the exercise of the court’s discretion, because it disapproves of the verdict, either as against the weight of evidence, or perhaps as fatally inconsistent with itself, if it be special. It is also well settled that in such case terms should be imposed, whereas, if the new trial be granted because the verdict be perverse or entirely unsupported by the evidence, or because of errors of the court, costs should not be imposed. Schraer v. Stefan, 80 Wis. 653, 50 N. W. 778; Garny v. Katz, 86 Wis. 321, 56 N. W. 912; Mills v. Conley, 110 Wis. 525, 86 N. W. 203. So in the present case the form of the *70order raises tbe presumption that tbe new trial was granted in tbe discretion of tbe court because it was dissatisfied with tbe verdict. This presumption is not overcome by anything appearing in tbe record, and, on tbe other band, it is strengthened by tbe fact that costs were imposed upon tbe defendant as a condition of tbe new trial, which would have been error if tbe order were founded on errors of tbe court. Hence it must be treated simply as an order made in tbe exercise of tbe discretion of tbe court, because tbe court was dissatisfied with tbe verdict, which can only be reversed in case abuse of discretion is shown. Looking at tbe evidence presented in the bill of exceptions and at tbe verdict, we certainly cannot say that any abuse of discretion appears. On its face, tbe verdict is absolutely inconsistent, in that tbe answers to tbe fourth and fifth questions negative contributory negligence on tbe part of tbe deceased, while tbe answer to tbe sixth question directly finds him guilty of contributory negligence. Nor can we say, as argued by tbe appellant, that there is m> evidence upon which an affirmative answer to tbe sixth question can be based. We do not say that tbe evidence proved him guilty of contributory negligence as matter of law, but simply that there was evidence for tbe jury on both sides of tbe question. For instance, one witness for tbe defendant, named Leisenfeldt, who was a passenger on tbe car, testified that be saw tbe team as it approached the crossing on tbe west side of East Water street; that tbe driver was facing northeast, and making no effort to stop bis wagon; that be watched tbe team continuously ; that be did not see tbe driver turn bis face toward the car till bis horses got on tbe west rails of tbe street car track; and that be made no effort to stop bis horses before that time. There is other evidence of similar nature, though not so positive. It is true, there is evidence tending to show that tbe deceased looked to tbe south, and attempted to stop bis team earlier than tbe witness Leisenfeldt testifies, and that the horses seemed to be unable to bold back tbe loaded wagon on *71account of the grade; but, taken all together, the evidence is not such that it could be said that it was all one way, or that there ivas no evidence to justify the answer to the sixth question, or that the trial court abused its discretion in granting a new trial because of the unsatisfactory character of the verdict.

By the Oourt. — Order affirmed.