Leiser v. Kieckhefer

69 N.W. 979, 95 Wis. 4, 1897 Wisc. LEXIS 135

• Court: Wisconsin Supreme Court
• Decided: January 12, 1897
• Status: Published

Opinion

NewmáN, J.

The only question dispussed upon the hearing was whether this was a proper case for the direction of a verdict. The settled rule is that, to justify the direction of a verdict on a question of fact, the evidence must be clear and imcontradicted, and all one way. The court must look at the facts in evidence in the most favorable light for the other party in which the jury would be at liberty to find them, and then be able to say that there is no evidence which would justify a verdict in his favor. If there is some testimony fairly tending to support the opposite contention, it is a question for the jury. The question — on which side is the preponderance of the evidence — is always for the jury. So that, ordinarily, affirmative testimony, covering the issue, of one witness alone, and he a party and contradicted, is sufficient to take the case to the jury. It is the function of the jury to weigh the testimony. Lawrence University v. Smith, 32 Wis. 587; Spensley v. Lancashire Ins. Co. 54 Wis. 433; Jackson v. Jacksonport, 56 Wis. 310; Calder v. Crowley, 74 Wis. 157; O’Brien v. C. & N. W. R. Co. 92 Wis. 340. It cannot be said, in this case, that the evidence on the plaintiff’s side is uncontradicted, nor that the evidence in the case is all one way, nor that the evidence would not support a verdict for the defendant. The case should have been submitted to the jury.

By the Oourt.— The judgment of the circuit courtis reversed, and the cause remanded for a new trial.