135 Wis. 73 | Wis. | 1908
The new trial was granted in the exercise of the discretion of the court and not for error. This is shown by the fact that costs were imposed as a condition, as well as by the opinion of the circuit judge which is returned with the record. In this opinion the trial judge states that it seemed to him that the preponderance of the evidence showed that open hooks were commonly used for the
It is not necessary for this court to' decide whether the judge’s conclusions upon the effect of the evidence were correct or whether the jury’s conclusions were correct. The evidence was conflicting upon both points. The court was dissatisfied with the jury’s conclusions, and in the exercise of his discretion set their conclusions aside. His action will not be reversed by this court unless there was an abuse of discretion, and this does not appear. Kittner v. M. & N. R. Co. 77 Wis. 1, 45 N. W. 815.
Near the close of his opinion the circuit judge says that, “in order to find for a plaintiff, the jury must be satisfied by preponderance of the credible evidence in the case. No less a measure could be established for the court. I feel that a retrial is necessary to bring about that unanimity of satisfaction required as a basis for judgment.” This is an erroneous view of the court’s duties. In jury trials the jurors try the facts. It is neces'sary that they should be convinced of the existence of the required facts by the preponderance of the .evidence in order to find a verdict. It is not necessary that the trial judge be so convinced in order to approve the verdict or enter judgment thereon. Mere doubt on his part as to the correctness of the verdict, or a condition of mind where he feels that he cannot say which way the evidence ■preponderates, will not require the setting aside of the ver-
The order being discretionary and no abuse of discretion appearing, the appeal will be dismissed according to the established practice of this court upon such appeals. R. Connor Co. v. Goodwillie, 120 Wis. 603, 98 N. W. 528; Eggen v. Fox, 124 Wis. 534, 102 N. W. 1054.
By the Gourt. — Appeal dismissed.