Eschweiler, J.

The appellant insists that the order of the circuit court should be reversed upon two grounds: (1) that no such action at law can be maintained by plaintiff and that its sole remedy is under sec. 12, ch. VII, of the charter of the city of Milwaukee by way of appeal from any assessment of benefits and damages; (2) that in absence of misconduct of counsel or error by the court and with a second jury arriving at the same conclusion as did a first, there no longer exists any discretionary power in the trial court to set aside such verdict or grant a new trial.

Action by the city authorities to have ascertained and determined the damages, if any, to abutting property owners by reason of the erection of such structure under ch. 376, Laws 1901, is a condition precedent to any insistence by the city that such abutting owner must resort to the exclusive remedy provided in the city charter of Mihvaukee in the form of appeal from such an award by reason of alleged inadequate or disallowance of any damages.

Defendant admits entering upon and completing the construction of such viaduct, having had no such determination made. It having itself failed to furnish the necessary and proper foundation upon which plaintiff could sustain an appeal under the city charter,, 'it cannot now insist that *470an abutting* property owner who claims damage to his property by reason of the action of the city in so constructing the viaduct must be relegated to the limbo of remediless wrongs.

On the disposition of this case on the former appeal (148 Wis. 72, 134 N. W. 139), the right of the plaintiff to recover upon the one ground of an alleged -change of the established grade of First avenue was disposed of, undoubtedly because much discussed in the briefs, but the right to maintain the action against the city as a trespasser because it did the work without a precedent ascertainment and determination of possible damages was not mentioned in the opinion. Such claim, however, was in the complaint as quoted above as it stood in both trials.

That the city failing of such condition precedent gave an injured abutting property owner a cause of action in tort for his damages hy reason of the trespass committed by the erection of-this identical viaduct in such unlawful manner, was squarely held in the case of Pabst B. Co. v. Milwaukee, 148 Wis. 582, 591, 133 N. W. 1112, argued at the same time as was the former appeal herein but decided subsequent thereto.-

Other cases arising out of the construction of this same viaduct, but for property on .the west side thereof, were decided the same way: Fred Miller B. Co. v. Milwaukee, 155 Wis. 81, 143 N. W. 1066; Bagnall v. Milwaukee, 156 Wis. 642, 146 N. W. 791.

The same view was taken of a similar statute under which a viaduct was built by the county of Milwaukee. Voigt v. Milwaukee Co. 158 Wis. 666, 149 N. W. 392.

Defendant contends that seven new points or defenses appeared on this second trial that were not in the evidence on the first trial. We have considered them. They do not, in our judgment, determine this case in defendant's favor.

A carefully prepared tabulation and comparison of the testimony of the opposing witnesses as to the resultant *471damages or benefits to this property on the two trials has also been presented. It demonstrates that the second jury had practically the same field of evidence as did the first in which to wander astray, assuming that the first jury erred. This court has held on the former appeal that the first trial judge did not err in holding that the first jury did.

We take the same view now, and hold that it was within the field of reasonable discretion by the trial court, upon the evidence in this case, to either uphold or set aside the verdict.

Many decisions are cited to the proposition involved in the second of the above stated questions raised by defendant. Many such may be found in 29 Cyc. 729. Some of the decisions holding to a strict limitation as to this discretionary power of a trial judge are upon statutory provisions so limiting the power. The legislature here has not made any such regulation.

We take the jury system as we received it from the common law. Norval v. Rice, 2 Wis. 22, 29. There it was under the superintending power of the trial court. Capital T. Co. v. Hof, 174 U. S. 1, 13, 19 Sup. Ct. 580; Simmons v. Fish, 210 Mass. 563, 565, 97 N. E. 102.

Though a trial court may properly, and undoubtedly should, set aside a second concurring verdict of a jury with greater reluctance • than in the first instance, his discretionary power is still there. • Ladwig v. Supreme Assembly E. F. U. 125 Minn. 72, 145 N. W. 798.

Though the doctrine of stare decisis is applicable to judicial decisions which now may be viewed as judicial errors, it does not hold as to jury errors.

By the Court. — Order affirmed.