Simpson v. Waukesha County

Eschweiler, J. The order imposed no payment of costs upon defendant as a condition for allowing a new trial in case the plaintiffs did not accept the option therein contained. The presumption therefore arises from such omission that the situation was not one where the court was dissatisfied with the verdict as being against the weight of the evidence, but rather that the motion was granted either because the verdict was perverse and entirely unsupported by the evidence — but the record here must exclude such ground, — or else because of misdirection to the jury or some prejudicial error by the court during the trial. Smith v. Taylor-Button Co. 179 Wis. 232, 234, 190 N. W. 999; Siegl v. Watson, 181 Wis. 619, 627, 195 N. W. 867. It can therefore be presumed from the record that the new trial was granted to defendant upon the sole ground that the trial court held that there had been prejudicial procedural error to defendant’s detriment by the fact that the jury had not seen or examined the north forty acres of plaintiffs’ farm, the whole farm necessarily being the subject of the consideration of the witnesses in their testimony and of the jury in their deliberations on the questions of values and damages. It appears without question that counsel for the respective parties were present with the jury at the time of the view; that no obstacle was interposed to the jury seeing as much of the premises involved as they desired; that no specific request was made by either party as to the extent of the view to be taken or objection made on the ground of any alleged insufficiency of the view at any time during the trial. A consideration of the record in this case convinces us that there was support under the testimony as it was presented in court for the conclusion reached by the jury. Witnesses on both sides gave their testimony covering a wide range as to the value and condition of the forty-six acres; the nature of the soil; the lay of the land, and the value of the farm as a whole; and of the various and many elements [666] of damage by reason of the taking of the strip and the construction of the new highway. The view itself was not evidence, but merely — and the trial court properly so instructed the jury' — to aid them in their consideration of the testimony. The mere failure of the jury to more completely exercise their opportunity, and for which failure the plaintiffs were in no wise responsible, cannot be considered such a prejudicial error as requires the setting aside of a verdict reached in what appears to be a fair trial of the issues. By the Court.- — Order reversed, and cause remanded with directions to enter judgment for the plaintiffs upon the verdict.