Pierson v. Citizens' Telephone & Telegraph Co.

WiNslow, C. J. The new trial was granted in the exercise of the discretion of the court and not for error. This is shown by the fact that costs were imposed as a condition, as well as by the opinion of the circuit judge which is returned with the record. In this opinion the trial judge states that it seemed to him that the preponderance of the evidence showed that open hooks were commonly used for the [76] purpose for which, the hook in question was used at the time of the accident, and hence that the finding that the defendant was negligent in furnishing the open hook for use was not supported as it should he by the preponderance of the evidence, although he recognized the fact there was some evidence in its support. It further appears from the opinion that the circuit judge was of opinion that under the circumstances in evidence plaintiff ought to have known the character of the hook in use if he had exercised reasonable care, and hence that the answer to the sixth question was not in accordance with the weight of the evidence: It is not necessary for this court to' decide whether the judge’s conclusions upon the effect of the evidence were correct or whether the jury’s conclusions were correct. The evidence was conflicting upon both points. The court was dissatisfied with the jury’s conclusions, and in the exercise of his discretion set their conclusions aside. His action will not be reversed by this court unless there was an abuse of discretion, and this does not appear. Kittner v. M. & N. R. Co. 77 Wis. 1, 45 N. W. 815. Near the close of his opinion the circuit judge says that, “in order to find for a plaintiff, the jury must be satisfied by preponderance of the credible evidence in the case. No less a measure could be established for the court. I feel that a retrial is necessary to bring about that unanimity of satisfaction required as a basis for judgment.” This is an erroneous view of the court’s duties. In jury trials the jurors try the facts. It is neces'sary that they should be convinced of the existence of the required facts by the preponderance of the .evidence in order to find a verdict. It is not necessary that the trial judge be so convinced in order to approve the verdict or enter judgment thereon. Mere doubt on his part as to the correctness of the verdict, or a condition of mind where he feels that he cannot say which way the evidence ■preponderates, will not require the setting aside of the ver77 diet, though it may justify it if the doubt- be serio-us and substantial. Courts frequently allow such' verdicts to stand because they cannot say that a finding the other way would be any more satisfactory, and in such case the determination of that branch of the court which is-primarily charged with the determination of questions of fact may well be allowed to control; otherwise there might never be a termination of a doubtful jury issue. "When, however, the trial judge is affirmatively convinced that the jury’s verdict is contrary to the preponderance of the evidence, a different situation arises, and he should not hesitate to set the verdict aside in the exercise of his discretion. The trial judge states that he was so convinced in the present case, and under that conviction set the verdict aside as he lawfully might. It is not perceived that his erroneous view of the law just referred to affected the correctness of the order made because he was convinced that the findings of the jury were against the preponderance of the evidence. The order being discretionary and no abuse of discretion appearing, the appeal will be dismissed according to the established practice of this court upon such appeals. R. Connor Co. v. Goodwillie, 120 Wis. 603, 98 N. W. 528; Eggen v. Fox, 124 Wis. 534, 102 N. W. 1054. By the Gourt. — Appeal dismissed.