Colla v. City of Racine

194 Wis. 501 | Wis. | 1928

Rosenberry, J.

The order of the trial court granting a new trial is highly discretionary and the trial court’s determination will not be interfered with except in a clear case of abuse of discretion. R. Connor Co. v. Goodwillie, 120 Wis. 603, 98 N. W. 528; Miller Saw-Trimmer Co. v. Cheshire, 177 Wis. 354, 189 N. W. 465; McCoy v. Terhorst, 188 Wis. 512, 205 N. W. 420.

Nowhere in the briefs of counsel is any question raised as to the correctness of the verdict in any other respect than that relating to damages. The trial court indicated his approval of the verdict in all other respects by denial of defendant’s motions before judgment. Should the trial court, in the exercise of a sound discretion, have granted defendant’s motion for a new trial merely because the defendant upon a second trial might be able to prove that the plaintiff was not in fact employed by the Wells Products Company at the time of her injury? Her employment, it appears, had ceased thirteen days prior to the date of the injury. Her employment seems to have been of an intermittent type. In the affidavits it appears that she worked as a solicitor from the 20th to the 23d of January and from the 9th to the 20th of February.

It is considered that the result reached by the trial court was due to an erroneous application of the principles of law governing the right to a new trial and amounted to an abuse of discretion, and it is also considered that there was not a sufficient showing of diligence on the part of the defendant to entitle it to have the judgment rendered upon the verdict set aside. ,

It is not necessary for us to again review the law upon these very familiar subjects. The computation of damages is not a matter of mathematics, but expresses the view of the jury as to plaintiff’s damages upon the whole case, and is not determined by the rate of wages received in a particular employment. The judgment in this case, considering the nature of plaintiff’s injuries, is not large and is amply sustained by the evidence, and the judgment should not have been vacated.

By the Court. — The order appealed from is reversed, and cause remanded with directions to the trial court to reinstate the judgment.