Gillett v. Flanner-Steger Land & Lumber Co.

MARSHALL, J. The court in submitting tbe cause to the jury, decided that there was room in the evidence to find the facts as they were found. Whether there was such room or not was a question of law. It was for the court to decide that before calling upon the jury to determine, as matters of fact, between conflicting inferences. With the judgment of the court for their guidance, it was most natural for the jury to take, as a verity, that there was room in the evidence for plaintiff to recover. They did so and rendered an honest and reasonable verdict, if the court gave the proper decision as to the law. They, naturally and properly, apprehended there was evidence warranting a finding either way. Whether the court decided at last, that there was no reasonable basis for the jury’s verdict, in any reasonable view of the evidence, does not clearly appear. On the whole, the decision of the trial judge does not possess the persuasiveness ordinarily to be accorded to a consistent and positive determination that the evidence does not, in any reasonable view, support the jury’s determination. Therefore, it seems that there is little, if anything, in the court’s decision below to impeach the verdict. So we incline to the view that there was a case for the jury, as the trial court, so far as they could have understood the matter, deliberately decided, and that judgment should have been rendered accordingly. Whether the verdict was excessive or not, because of the course the case took, was'not passed upon. Deceased was a common workingman. He was capable of earning about $400 per year. Tie was fifty-nine years of age. The recovery could not, properly, go beyond the reasonable expectation of pecuniary benefit from his life which the wife was deprived of by his untimely taking away. A recovery, in such [583] a case, under the Workmen’s Compensation Law would be about $1,600. Assuming that the earnings which would have gone to the wife each year during her husband’s expectancy of life, would have been $250 per year, which would he quite a large estimate, $2,775, at the time of the trial, would have been a full equivalent, based on what it would have taken, to purchase an annuity for her of $250 per year during such expectancy. His total earnings, had he lived, would not have exceeded $5,518, and the present worth would not exceed $2,500. Eour thousand six hundred and twenty-five dollars for damages to the wife is clearly excessive; but there was no motion to set aside the verdict on that ground, nor for a new trial because it was contrary to the evidence. On the record, defendant made no complaint except as to the findings on the subject of negligence. If it were not for sec. 2405m, Stats., there would be no way, under established practice, to remedy the difficulty. It is probable, counsel for plaintiff were misled by the circuit judge into supposing that there was practical certainty of relief from the verdict by motion to set aside answers as to negligence and so the ordinary motions to reach excessiveness in' the verdict were omitted. The confidence as to the trial court was not misplaced, and now respondent is left in a very poor predicament, unless relief can be accorded under the beneficent law referred to. The statute provides that the court, for the purpose of preventing a miscarriage of justice, may control the situation regardless of inadvertences or mistakes or mis judgments of the court or counsel, and may, regardless of whether proper motions, objections, or exceptions were taken or not, in case of a reversal, direct the proper judgment, or remand the cause for a new trial as shall be deemed necessary to accomplish the ends of justice. In view of that, it is considered that we ought, instead of remanding the case for judgment on the verdict as rendered, send it back with permission to the plaintiff to elect, within twenty days after the filing of the remittir [584] tur in tbe trial court to take judgment for $3,000 and costs, or a new trial on tbe question of damages only. By the Court. — The judgment is reversed, and tbe cause remanded with directions as indicated in tbe opinion. Siebeckee and KeewiN, JJ., dissent from so much of tbe judgment as bolds that tbe damages are excessive.