Welch v. Morton Salt Co.

The following opinion was filed October 18, 1921: Vinje, J. We shall not set forth the evidence as to the degree of diligence used by plaintiff to prepare for trial. Upon important points it is in conflict, and that being so it was especially a question for the trial court to decide. We cannot say .there was an'abusé of discretion in resolving that issue in favor of plaintiff. The serious question in the case is whether the newly-discovered evidence, taken as true, shows actionable negligence on the part of the defendant. Such evidence is not as specific upon certain points as it should be and is susceptible of different interpretations. The trial court construed it favorably to plaintiff, as he had a right to do and should do upon such an application. We purposely forbear to express any opinion at this time upon the merits further than to [420] say that it may appear upon the next trial that plaintiff at the time of the injury was an invitee upon the premises and that the defendant failed to exercise the care it owed him as such or that it is otherwise liable. Neither party should be foreclosed by expressions of opinion at this time because the new trial may develop a state of facts quite different from those considered upon this appeal. Here the question is, Did the trial court abuse its discretion in granting a new trial ? We think not because the new evidence may show liability on the part of the defendant, and for that reason we cannot say there was any abuse of discretion. The granting of a new trial is largely in the discretion of the trial court and will not be disturbed except for cogent reasons. R. Connor Co. v. Goodwillie, 120 Wis. 603, 98 N. W. 528; Eggen v. Fox, 124 Wis. 534, 102 N. W. 1054; Godfrey v. Godfrey, 127 Wis. 47, 106 N. W. 814; Bailey v. McCormick, 132 Wis. 498, 112 N. W. 457; Gross Coal Co. v. Milwaukee, 148 Wis. 72, 134 N. W. 139. By the Court. — Order affirmed. A motion for a rehearing was denied, with $25 costs, on December 13, 1921.