McCoy v. Terhorst

The following opinions were filed October 20, 1925: Vinje, C. J. The plaintiff assigned as errors (1) that the court erred in denying plaintiffs’ motion for amending the special verdict and for judgment against the defendant Terhorst upon the verdict as so amended. The amendment consisted in asking that the court find that Terhorst’s negligence in permitting or directing Robert to sit on the floor of the truck was a proximate cause of the injury; (2) that the court erred in ordering or awarding judgment in favor of the defendant Terhorst dismissing the complaints of plaintiff; (3) that the court erred in denying plaintiff’s motion for judgment on the verdict against the defendant Kenosha County; (4) that the court erred in granting the defendant [515] Kenosha County a new trial on the ground of newly-Jis-covered evidence and in furtherance of justice. The crux of the trial seemed to center on the condition of the left-hand shoulder of the traveled track as to whether there were stones more or less hidden in grass and weeds and to some extent on the loose gravel in the center of the traveled track. Upon the question of the existence of the stones plaintiff produced eight witnesses. Robert Johnson testified that he saw stones. Lawrence Johnson said he did not feel any jar or see stones. John Terhorst testified that he saw stones. Michael Cunningham heard a jar. and later saw stones. Philip Klein said he felt a bump or jar of the truck, hit something hard. Frank King said he saw stones. George McCarthy likewise saw stones. Wengel Francher did not see any stones on the left side in the grass,. but testified that there were stones all along. As to weeds, all of the above witnesses testified that they noticed them. And all of the above witnesses but King testified they saw loose gravel in the middle of the traveled track of the road. The defendant introduced five witnesses as to the existence of the stones. John Herzog testified he saw no stones on the shoulder of the road but saw some five or six feet from the road. Theodore Bush said he never looked for stones. Matt Ludwig did not see any stones fifteen or sixteen inches in diameter within a foot of the road. William Cull, Charles Holderness, and Walter Bennett did not observe stones. Wesley Pense says he felt a bump when riding along the left side of the road. As to weeds, all of the above witnesses testify there were more or less weeds. But the substance of their testimony was that the weeds were not as thick or as .large as testified to by plaintiffs’ witnesses. The above is a mere synopsis of the evidence relative to the existence of stones and weeds, but it is sufficient for the purpose of determining whether or not the trial court correctly held that the defendant Kenosha Coimty [516] was entitled to a new trial on the ground of newly-discovered evidence. It asked for a new trial on the strength of two affidavits) one by Mr. Ward and one by Mr. Madden. Each affidavit shows that the affiant examined the place in question shortly after the injury but saw no stones or boulders lying along-the left-hand side of the traveled track such as could have caused the injury in question. Some excuse is given why the witnesses were not produced upon the trial. Conceding that the defendant county exercised due diligence in securing witnesses, we are clearly of the opinion that it was error for the trial court to grant a new trial on the ground of newly-discovered evidence. The situation was a plain, open one, and the testimony shows that the conditions that obtained at the time of the accident remained for a long time. It was quite easy for the county to have persons examine the place and acquaint themselves with the situation. Moreover, the new testimony is merely cumulative, and the whole subject was quite completely covered by the testimony of the witnesses produced upon the trial. It is not probable that a different result would be reached on a new trial because of the additional evidence. It is the claim of the plaintiffs that since the defendant Terhorst was negligent in permitting or directing Robert to sit on the floor of the' truck, it follows as a matter of law that such negligence was the proximate cause of his injuries. It is true that frequently proximate cause follows as a matter of law from a finding of negligence, but we do not think it applies to a case like this. No matter where a person sits on a truck that is upset it cannot be said with any degree of certainty that his injuries are proximately caused by the place ■he occupied on the truck. Of course there may be situations where proximate cause can be said as a matter of law or of fact to flow from the position occupied. But here the plaintiff sat on the floor of the truck with his feet on the running board, and when [517] the truck upset he happened to be caught beneath it as shown by the evidence. He might have been so caught, or worse, had he sat in a place considered much safer. The jury no doubt felt that they could not say with any degree of certainty that his injuries were due to the position he occupied on the truck, and we think they could reasonably come to such a conclusion. The trial court expressed his agreement with the verdict in this respect. It follows that the judgments dismissing the actions as to the defendant Terhorst are affirmed. The granting of a new trial in the furtherance of justice presents a question not so easy of solution. Here we have a case in which the verdict is supported by evidence not inherently incredible or weak because of physical conditions contradicting it or rendering it improbable. Not only that, but the evidence of the defendant county in opposition as to the existence of the stones, weeds, and gravel is in part merely negative. Nevertheless the trial judge felt that he could not approve of the verdict. His reasons for so doing must have rested upon the fact that he did. not give the credence to plaintiffs’ witnesses that the record would seem to warrant. As to this.he was in a much better position to judge than we are. His expression that the new trial is granted “in furtherance of justice” does not preclude this court from examining the whole record and from reversing if such examination clearly leads to the conclusion that there was nothing upon which to base such expression. But it does inform this court of the fact that the trial judge is of the opinion that justice has not been done and that a new trial should be had. In such cases we do not reverse merely because, upon the record before us, we come to a different conclusion. It must clearly appear that there was an abuse of judicial discretion before we reverse. In John v. Pierce, 176 Wis. 220, 224, 186 N. W. 600, the rule is thus stated: “A discretion is vested in the trial court to grant a new [518] trial when he feels that the verdict is against the weight of evidence, and this court will not disturb his action in that respect where the evidence is such that conflicting conclusions may be reached by different persons.” In that case this court .had on a former appeal quite clearly expressed a view contrary to that of the trial judge, and it was stated that such view was adhered to by the court, and yet the action of the trial court in granting a new trial was sustained. Here the evidence is such that it would sustain a verdict for the defendant county. That being so, and the trial court having expressed his dissatisfaction with the verdict on the ground that justice has not been done, we cannot say that there has been an abuse of judicial discretion. Trial judges must be left free, nay, must be encouraged, to exercise a sound judicial discretion in such matters. The rights of neither parties are concluded by granting a new trial. Both have a right to submit their respective claims to a new tribunal, believed by the trial judge better qualified to pass thereon. By the Court. — Judgments and orders affirmed.