Kittner v. Milwaukee & Northern Railroad

Lyon, J. There is little to be said in determining this appeal. "Without the third finding, which the circuit court disapproved, the special verdict will not support a judgment for plaintiff. The testimony relating to the subject matter of that finding is conflicting, or at least is such that opposite conclusions may reasonably be drawn from it by different persons of equal and average capacity to judge of the weight of evidence. The jury came to one conclusion, and the learned judge of the circuit court reached the opposite conclusion. The reasons of the judge, upon which his conclusion is based, were stated by him in an able and discriminating written opinion on file in the case. We are not concerned to inquire which view of the testimony is the correct one. The judge recognized the fact that there was testimony to go to the jury on the question of the plaintiff’s knowledge and means of knowledge of the existence, height, etc., of the tramway, and submitted the same to the jury. He again recognized the same fact by imposing terms on the defendant as the condition of granting a new trial, and expressly rested the order for a new trial on the proposition that the weight or preponderance of testimony was against the verdict. So we have a case in which the trial court, being dissatisfied with the verdict on a material and controverted proposition of fact, because it thought the same was against the weight of evidence, in the exercise of its discretion set the verdict aside and granted a new trial upon the usual terms.' In this we perceive no abuse of discretion, and hence cannot overrule the action of that court. This is not a case in which the court has proceeded upon a mistaken view of the law, as in Bushnell v. Scott, 21 Wis. 451; Jones v. Evans, 28 Wis. 168; and Duffy v. C. & N. W. R. Co. 34 Wis. 188,—but upon the opinion that, as to a material fact, the verdict is against the weight of evidence. This is a legitimate ground for the exercise of its discretion [4] by the circuit court. Smith v. Lander, 48 Wis. 587, and cases cited. The circuit court did not pass upon the question of the alleged excessiveness of damages, and it will not be determined on this appeal. By the Court.— The order granting a new trial is affirmed.