128 Wis. 276 | Wis. | 1906
The following opinion was filed March 20, 1906:
It is contended that the verdict of the jury is without credible evidence to support it, and that the court’s denial of defendant’s motion for a new trial upon this ground was prejudicial error. The rule governing this court in its review of such a decision by the trial court is explicitly stated in the recent case of Bannon v. Ins. Co. of N. A. 115 Wis. 250, 91 N. W. 666, to be that “this court will not reverse such order merely because, in its opinion, the verdict is against the preponderance or ‘great weight’ of the evidence; the deference which the court owes to the trial courts forbids such action. This court will reverse such a ruling only when there is no evidence to sustain, the verdict or- its finding, or where, though there be some evidence in its support, still the great weight of the evidence is against it, and that weight is so reenforced by all the reasonable probabilities and inferences that it becomes overwhelming. . . . The great weight of evidence and all reasonable probabilities must conjoin against the verdict in order to malee the situation such that this court will interfere.” Collins v. Janesville, 117 Wis. 415, 94 N. W. 309; Powell v. Ashland I. & S. Co. 98 Wis. 35, 73 N. W. 573; Beyer v. St. Paul F. & M. Ins. Co. 112 Wis. 138, 88 N. W. 57.
The question, then, is whether there is evidence tending to support plaintiff’s claims, which in any reasonable view of it is worthy of belief. As stated, the accident occurred about sixteen years before the trial took place. LThis fact may serve to explain the want of recollection, by the witnesses of the accident who were sworn on the trial, of many of the par
Mrs. Smith testified that she and Mr. Smith were standing at their gate. Her statements are confirmatory of Mr. Smith’s
The question arises whether this evidence furnishes a basis which will support the inferences of liability upon the grounds found by the jury. There is nothing to show that this evidence is intrinsically improbable, and it cannot be said that the great weight of the evidence in the case and all the reasonable probabilities and inferences are so clearly against the findings of the jury as to overcome them by an overwhelming weight. This evidence, above adverted to, manifestly permitted the inferences that the boy was struck by the engine on the crossing through appellant’s negligence, ánd that such negligence was the proximate cause of plaintiff’s injury. Under such circumstances the trial court is fully sustained in its decision denying defendant’s motion for a new trial. The rule governing this court in its review of such a decision of the trial court was reiterated in the case of Beyer v. St. Paul F. & M. Ins. Co. 112 Wis. 138, 88 N. W. 57, by declaring that upon such a motion “the trial court enters a field of discretion in which he may consider whether there is such overwhelming preponderance of evidence against the-verdict that it ought not to stand. While this discretion must be exercised judicially, and may be so clearly abused- as to warrant reversal by this court, that will be done only in most extreme cases, of
We are led to tbe conclusion that tbe record presents no ground calling for reversal of tbe judgment.
By the Court. — Judgment affirmed.
A motion for a rebearing was denied May 8, 1906.