224 Wis. 347 | Wis. | 1937
The following opinion was filed February 9, 1937:
The difficulties experienced by the trial court in this case are fully appreciated. The testimony of plaintiff of severe injuries; the likelihood of their having occurred through her own fault or misfortune; the fact that
“A jurisprudence that is not constantly brought into relation to objective or external standards, incurs the risk of*351 degenerating into what the Germans call ‘Die Gefühlsjuris-prudenz,’ a jurisprudence of mere sentiment or feeling.”
An extreme finding by a jury, moved by sympathy or other extralegal cause, should not be treated as conclusive if the trial court sees that factors other than the evidence are responsible for the jury’s finding.
The evidence bearing upon negligence of defendant was meager, particularly as to disturbance of the car after the alleged “jerk,” and the comment upon the character of the evidence by the judge, to be quoted hereafter, seems warranted. The damages assessed by the jury were so excessive as to be some indication of perversity. The jury allowed $25,000; the amount of the judgment taken by plaintiff under the court’s order was $14,681.25. There is no doubt that plaintiff sustained an injury as she alighted from defendant’s streetcar or that she fell. The existence of a cause for a fall attributable to negligence of the defendant is the matter to be investigated. The car on which she was riding was in proper condition, and as it came to a stop no emergency arose calling for the use of unusual methods of controlling it. Before the car stopped, she walked from her seat to the exit without experiencing any difficulty. Handle bars or holds were provided at convenient places , to assist one standing at an exit and about to leave the car. The purpose for which these are designed is to assist one in overcoming the effects of jerks and jars usual to the operation of a car under circumstances requiring passenger and operator to anticipate such jerks. Plaintiff evidently did not avail herself of these assisting supports. She testified that the exit door was open as she stood on the platform before the car stopped, and that the movement of the car which caused her to lose her balance was “an awful jerk; just jerked me right out.” There is no claim that it broke any hold she had on the handle bars. Does the record disclose evidence which is fit and appropriate as a means of establishing the existence of a jerk, and that such
The motorman says that his car came to a gradual stop, and from the condition of the street and traffic, it appears that there was no occasion for stopping the car in any other way. It would seem to follow from the evidence of the respective parties that the claim of the plaintiff, if believed by the jury, would result in a finding of an extraordinary jerk. The trial court at the close of the testimony, in ruling upon a motion for a directed verdict, said:
“I have my doubts about it, but I think I will submit the case to the jury, and I will take the brief and give this*353 further consideration when I have further time. The evidence is all there, and I will get considerable benefit out of the argument as you argue to the jury. I add to that that I may direct a verdict during the arguments or after the arguments; I cannot say yet. The case is a good deal thinner than the Hanley Case.”
Some time later, on ruling on motions after verdict, the learned trial judge said:
“Cases from other jurisdictions relied upon by defendant involving sudden and unusual jerks of streetcars while still in motion do not rule this case, because here the car had come to a complete stop and the exit door had been opened by the motorman to allow the plaintiff passenger to alight before the jerk found by the jury had occurred. Both the plaintiff and the motorman so testified. The case of Hanley v. Milwaukee E. R. & L. Co. 220 Wis. 281, 263 N. W. 638, 639, is considered a more pertinent authority.”
Under our system of administering justice, the influence of a trial court’s conclusion is most often controlling in determining whether the truth has been developed in the judicial investigation conducted before him and an accurate expression of that truth has been given in the jury’s answer. If he is of the opinion that justice has not been done, it becomes his duty to grant a new trial or take such other step as the law provides for correction. It has been held that after a second trial and a verdict concurring with that first rendered, the submission of the matter to a third jury would again be within the discretion of the trial court, although, in that event, resubmission should be ordered with great reluctance. Johnson v. Wilson, 1 Pin. 65; Gross Coal Co. v. Milwaukee, 170 Wis. 467, 175 N. W. 793; see Paulsen v. Gundersen, 218 Wis. 578 at p. 583, 260 N. W. 448. The rulings of the trial court in those particulars, as we said, are entitled to considerable weight in determining questions submitted to this court upon appeal. Here the grave doubt expressed by the trial court as to the existence of any cause of action, and the final approval of the verdict upon the assumption, contrary to
By the Co%t,rt. — Judgment reversed, cause remanded with directions to grant a new trial, costs of the first trial to abide the final outcome.
A motion for a rehearing was denied, with $25 costs, on April 7, 1937.