Smith v. Lander

Taylob, J. This is an appeal from an order of the circuit court granting a new trial upon the application of the plaintiff. The new trial appears to have been granted on the ground that the verdict was against the weight of evidence. The granting or not granting a new trial upon the ground that the verdict is against the weight of evidence is in nearly all cases a matter in the discretion of the trial court; and this court will not interfere with such order, whether granted or denied, unless it is clearly apparent that there was an abuse of discretion in malcing or refusing the order. And it is highly proper that it should he so. The learned judge who presides at the trial, and sees as well as hears the witnesses upon whose testimony the verdict is founded, is in a much better position to judge as to the fairness of the verdict than this court can be. His discretion, therefore, in granting a new trial cannot be interfered with, unless it clearly appears that there was no ground for granting the' same, or that it was granted upon a mistaken theory of the law applicable to the case. The cases in this court relied on by the learned counsel for the appellant for the reversal of this order, are all cages in which this court refused to reverse orders refusing to grant new trials; but.the conclusion sought to be drawn from the language of the opinions in those cases, that because this court will not reverse an order refusing a new trial where the evidence is conflicting and there is some evidence to support the verdict, therefore an order granting a new trial will be reversed where the evidence is conflicting and there is evi-dencé.to sustain the verdict, does not follow. The order being [592] to a great extent a discretionary order, this court will not interfere, no matter whether the order grants or refuses the new trial, unless it is apparent that there is an abuse of this discretion. Van Valkenburgh v. Hoskins, 7 Wis., 496, and cases cited in the opinion. See, also, the cases cited in the brief of the learned counsel for the respondent. It is said by the learned counsel for the appellant, that this court ought to infer that the learned circuit judge granted the new trial for the reason that he had come to the conclusion that he had erred in instructing the jury on the question of negligence on' the part of the defendant in executing and delivering the note in the manner in which he says he executed it, and as it is apparent that he did execute it, if his evidence is to be believed. We do not feel justified in mating any such inference. We are of the opinion that the instructions of the learned circuit judge were sufficiently favorable to the plaintiff on this point. We entertain very grave doubts whether, if the note was executed and delivered by the defendant to the payee in the exact form it would have been if his testimony be true that the words “or bearer” were inserted after he delivered the same, and without his knowledge, there was any question of negligence on the part of the defendant either to be submitted to the jury or to be inferred as a matter of law. The authorities cited in the brief of the learned counsel for the appellant would seem to indicate that the evidence was not sufficient to raise the question of negligence on the part of the defendant; and certainly the facts proven are not such that the court could say, as a matter of law, that the defendant was guilty of such negligence in signing and delivering the note in the form he claims it was delivered, as to deprive him of the right to contest the question of its alteration in the hands of a bona fide holder without notice; but as it is unnecessary to decide that question on this appeal, we forbear any further comment upon it. There is nothing in this record which shows that the learned [593] circuit judge abused bis discretion in granting tbe new trial in this.case; but, as we must conclude tbat tbe new trial was granted in this case on tbe ground that tbe verdict was against the weight of evidence, and as it -is not apparent that the verdict was so wholly unsupported by the evidence as to justify this court in holding that it was a perverse or corrupt verdict, according to the rule established by this court in the case of Pound v. Roan, 45 Wis., 129, and cases cited in the opinion, the order should have been granted upon terms of paying the costs of the former trial; and because'it was not so ordered, it must be reversed. By the Cov/rt. — The order is reversed,' and the cause rein anded with directions to the circuit court to order a new trial, on the terms that the plaintiff pay the taxable costs of the former trial.