Collins v. City of Janesville, 117 Wis. 415

Collins v. City of Janesville

117 Wis. 415 | Wis. | 1903

MaRshall, J.

-The first proposition submitted by appellant’s counsel is that the court erred in not setting aside the verdict and granting a new trial upon deciding that it was not supported by the preponderance of the evidence. We are unable to agree with counsel on that. A motion for a new trial upon the ground that the verdict is contrary to the evidence is addressed to the sound discretion of the trial judge, and he is so supreme in that field that his decision is not subject to disturbance on appeal if there is any reasonable ground upon which’it can be supported. Parlin & O. Co. v. Angell, 99 Wis. 297, 74 N. W. 777; Larson v. Eau Claire, 92 Wis. 86, 65 N. W. 731; Lee v. C., St. P., M. & O. R. Co. 101 Wis. 352, 77 N. W. 714. It is elementary that it is for the trial court to decide as a matter of fact whether there are conflicting reasonable inferences from the evidence, indicating the existence of probabilities upon which a decision either way might be based (Powell v. Ashland I. & S. Co. 98 Wis. 35, 73 N. W. 573) ; and it is the exclusive province of the jury to decide in the first instance upon the comparative weight of such probabilities and whether the one so preponderates over the other as to produce conviction respecting the truth of the matter involved, and the conclusion reached by such jury must stand as infallible in fact and in law, subject to the discretionary authority of the trial court to set the same aside, and the authority of this court to see that such authority is not abused. While there are cases where it has been said that it is an abuse of discretion not to grant a new trial when the *424great preponderance of tbe evidence is .against the verdict of the jury (Johnson v. Superior, 103 Wis. 66, 78 N. W. 1100), it will be found upon close examination of the decisions in that regard that this court did not intend in any case to revise the decision of the trial judge upon a mere balancing of reasonable probabilities; but to hold that where such probabilities are all one way, precluding any sensible decision to the contrary, there is no room for the exercise of discretionary authority, strictly so called, because there is no basis for more than one decision. The moving party in such circumstances aj>peals not strictly to the discretionary power of the court for a favor, but stands in the attitude of one demanding a right. Badger v. Janesville C. Mills, 95 Wis. 599, 70 N. W. 687; Flaherty v. Harrison, 98 Wis. 559, 74 N. W. 360; Vorbrich v. Geuder & P. Mfg. Co. 96 Wis. 277, 71 N. W. 434; Cawley v. La Crosse C. R. Co. 101 Wis. 145, 77 N. W. 179; O’Brien v. C., St. P., M. & O. R. Co. 102 Wis. 628, 78 N. W. 1084.

No more need be said, we apprehend, to show that the mere fact that the learned trial court reached the conviction as matter of fact that the verdict of the jury was clearly against the XU’eponderance of the evidence, did not create a judicial duty to 'grant a new trial. If there were yet reasonable probabilities the other way upon which any person of common understanding, looking at the evidence considerately, might probably act, the way was open for the trial judge to grant or refuse a new trial as might seem to him proper, notwithstanding his own conviction as to the truth of the matter involved. It is only where judicial action can properly go but one way that there is a violation of judicial duty in acting contrary thereto in a matter commonly understood to be, or spoken of as, within the scope of discretionary authority. State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 591, 79 N. W. 1081.

What has been said leads to the second proposition advanced by appellant’s counsel, namely, that the verdict of the jury is without any credible evidence to support it, hence *425should have been set aside as a matter of right, under the rule heretofore adverted to. On that subject we have the decision of the trial court in favor of respondent, and the saíne respect must be paid thereto as to its decision on any other matter of fact. Powell v. Ashland I. & S. Co. 98 Wis. 35, 73 N. W. 573. True, the learned circuit judge did not believe, as he distinctly stated, the evidence on the part of respondent, but he at the same time in effect decided, as we have before indicated, that a view might reasonably be taken of the evidence which would support the verdict, and that decision must necessarily be overruled in a reversal of the judgment upon the ground now under discussion. When we look beyond the decision of the trial court to the evidence upon which it is based, we find that three witnesses positively corroborated the evidence of respondent that she fell upon the sidewalk, while there are three witnesses who testify directly or in effect to the contrary. The claim is made that the boy who said he saw the accident, while looking from his hiding place around the comer of the Barron house, cannot be believed reasonably, because his location was such that it was physically impossible for him to see the respondent at the instant she received her injury, if that occurred where she claims it did. The trial court evidently did not take that view, and so far as we can determine the truth of the matter from the evidence, aided by the plat showing the location of respondent, the boy, and the surrounding objects, appellant’s counsel is not correct. A direct line from where the boy stood to where respondent claims she fell upon the sidewalk passed through a picket fence and was otherwise interrupted, but we are unable to reach the conclusion that it was so fully intercepted as to render it impossible for a person looking intently, as the boy evidently was because of the game that was in progress, making it important for him to watch for the other children, to observe what he said he did if the occurrence in fact took place. The other two persons who testified to seeing respond*426ent fall upon the walk do not agree, it is true, as to all the circumstances characterizing the occurrence, and neither of them agrees altogether with the testimony of respondent; nor does her testimony upon each occasion harmonize with that which she gave upon all other occasions when she testified to the matter under oath. But it is within the knowledge of us all that where several persons witness an accident and some time thereafter severally attempt to describe it, each intending to state truthfully just what occurred, they will differ very widely as to collateral matters while agreeing on the particular thing which impressed them at the time, the accident itself. It is just as well within our common knowledge that several relations of an occurrence involving the safety of a person, especially a child, made by such person, and extending over a period of several years, often, we may say generally, fail to harmonize on all the particulars while agreeing as to the occurrence itself. If rights were to be lost as a matter of course because of such infirmities pf human memory, in a very large proportion of cases involving wrongs to be redressed the law would fail to furnish a remedy. But the administration of the law is not so infirm as that. It is competent for the trier or triers of issues of fact to reconcile conflicts in evidence if that can reasonably be done, and to reject evidence-found to be irreconcilable, if that can reasonably be done, and so to reach a conclusion as to the right of the matter'involved.

It is useless for us here to go into a careful analysis of the evidence in order to justify our conclusion that we ought not to overrule the decision of the trial court that the verdict complained of is not so clearly against the evidence as to leave no reasonable probability of truth to support it. We have already mentioned in a general way the most significant matters upon which appellant’s counsel rely. They refer with great confidence to the evidence of the doctor, that the immediate effect of such an injury as the one respondent received is much pain and impaired ability to use the wounded mem*427ber. In our view of tbe ease it is quite as significant that no evidence was produced showing that it would be physically impossible for a person to go a short distance, using the injured member under the circumstances testified to by respondent. No such evidence, we should say, could have been truthfully given, because it is, we may properly say, a common occurrence for a person injured substantially as respondent was to go a short distance aided partly by the injured member.

We have not deemed it necessary to discuss the evidence produced by appellant, because in the decision of the appeal it is only important to determine whether the evidence produced by the respondent is worthy of belief from any reasonable view thereof. In that we agree with the trial court. This is not a case where the verdict of the jury rests on the uncorroborated conflicting evidence of the interested party, opposed by much clear, credible evidence, as in McCoy v. Milwaukee St. R. Co. 82 Wis. 215, 52 N. W. 93, and similar cases. It has frequently been held, and is the true rule, that only where the evidence of the interested party is intrinsically improbable, even though it is all the evidence in support of the verdict and is contrary to much evidence which the jury might reasonably believe, that the appellate court is justified in holding that it is wholly unworthy of belief and overturning the decision of the trial court on that subject. Hardy v. Milwaukee St. R. Co. 89 Wis. 183, 61 N. W. 771; Bading v. Milwaukee E. R. & L. Co. 105 Wis. 480, 81 N. W. 861. The evidence of respondent here was neither intrinsically improbable nor uncorroborated, as we have sufficiently indicated.

A further point is made that the evidence of respondent conclusively discloses contributory negligence on her part under the rule laid down on the former appeal, 111 Wis. 348, 87 N. W. 241, 1087. On the contrary, the very element found wanting in that case to carry the controversy to the jury was supplied upon the trial now under review. The evidence upon the last trial showed that respondent was at the *428time sbe was injured intent upo-n seeing where tbe children that ran on before her and disappeared down the alley had gone, and upon that account and by reason of the further fact that she thought the hole in the walk was a little further along, she failed to see it before stepping therein. Such circumstances, within the doctrine laid down upon the former appeal, sufficiently rebutted the presumption of negligence arising from the proof that respondent was familiar with the condition of the walk, to preclude holding as a matter of law that she remembered, or was inexcusably negligent in not remembering, the defect, and that she heedlessly walked into it. The case on that branch is quite as strong as Crites v. New Richmond, 98 Wis. 55, 78 N. W. 322, where the plaintiff failed to avoid a hole in a sidewalk, with which he was perfectly familiar, by reason of the fact that as he walked along an acquaintance called to him from the opposite side of the street.

By the Court. — The judgment is affirmed.