Kuligowski v. Kieckhefer Box Co.

SiebecKee,, J. The trial court granted a new trial upon the ground that the verdict of the jury was perverse, and the circuit court on appeal, after examining the record, sustained the action of the trial court. It is contended that the facts and circumstances shown in the record show that such action of the lower courts is clearly wrong and should be reversed. The argument is made that the trial court manifestly granted the new trial for the sole reason that the jury’s verdict find 323 ing that plaintiff bad sustained no damage was against tbe overwhelming weight of the evidence. We are not convinced of this by the record. A trial court has superior opportunity to learn and know whether or not any elements of passion and prejudice may have swayed a jury in arriving at their verdict. As stated in the case of Lines v. Milwaukee, 147 Wis. 546, 133 N. W. 592, “A trial judge may observe many things in the conduct of a trial that satisfy him that jurors have, been influenced by improper motives and that the verdict returned is founded on passion and prejudice rather than Upon law and evidence. In such a case his duty to set aside a verdict is clear, although he might not do so if satisfied that the verdict was the result of honest judgment.” We do not find from a study of the record that the action of the lower court is so clearly wrong as to demand reversal of the order granting a new trial. It is also contended that the evidence shows as a matter of law that plaintiff was guilty of contributory negligence. This issue was submitted to the jury and they found in the negative. It is contended that in the light of the boy’s testimony that he complained to the foreman in the morning of the day and before he was injured that this lifting of the boxes was too hard for him and that the foreman had informed him that he must do it or quit the service, affirmatively shows that he knowingly and voluntarily assumed the chance of injury, and that his continuance in the employment under those circumstances constitutes contributory negligence as matter of law. We are of the opinion that the facts and circumstances relied on to establish this defense do not show that plaintiff by continuing in the employment was guilty of negligence as matter of law, and that the trial court properly submitted this issue to the jury for determination. By the Court. — The order appealed from is affirmed.