214 Wis. 259 | Wis. | 1934
The defendant contends with considerable vigor that plaintiff was guilty of contributory negligence as a matter of law and supports its contention by refer
In McNamara v. McNamara, 108 Wis. 613, 84 N. W. 901, which was an action on contract, the court said:
“Where it appears with reasonable certainty that the recovery is so excessive as to create the belief that the jury has been misled by ‘passion, prejudice, or ignorance,’ the trial court may either grant a new trial absolutely or give the plaintiff the option to remit the improper excess. But the rule is only applicable in cases where it is clear that the perverse conditions mentioned only affect the amount of the recovery. If it appears that the elements of passion and prejudice may have entered into, and probably did affect, the decision of other questions in the case, the court’s duty is to grant a new trial absolutely.”
The rule of this case has been approved when applied to tort actions. Olsen v. Brown, 186 Wis. 179, 202 N.W. 167.
In view of the fact that there were two trials, that each jury has found in' favor of the plaintiff and the trial court’ has approved the findings in all respects other than the amount of the damages? it cannot be said upon this record that the findings upon this trial, although the damages were very excessive, indicated such passion, prejudice, and perversity as to require the setting aside of the entire verdict. If there had been but one trial, there would be considerable difficulty in arriving at that conclusion, in view of the very large amount of damages found.
By the Court. — Judgment affirmed.