Starry v. E. W. Wylie Co.

64 N.W.2d 833, 267 Wis. 258, 1954 Wisc. LEXIS 273

• Court: Wisconsin Supreme Court
• Decided: June 8, 1954
• Status: Published

Opinions

Brown, J.

If the form of the questions was erroneous the error is immaterial, for any clarification of it and any answer thereby rendered more definite and certain would not change the result of the trial since plaintiff’s recovery depends first of all on a finding that defendant’s driver was guilty of causal negligence. The jury found him not guilty. That requires the dismissal of plaintiff’s action regardless of any questions or any findings respecting Starry’s contributory negligence. The trial court’s first ground for directing a new trial cannot be sustained.

The second ground of the order is “In the interest of justice.” Sec. 270.49 (2), Stats., provides:

“Every order granting a new trial shall specify the grounds therefor. In the absence of such specification, the order shall be deemed granted for error on the trial. No order granting a new trial in the interest of justice shall be valid or effective, unless the reasons that prompted the court to make such order are set forth in detail therein. The court may grant or deny costs to either party.” (Emphasis supplied.)

It is evident that the order does not set forth the court’s reason as directed by the statute. Accordingly, we are compelled to hold that the order is void.

Plaintiff’s motion for review asks us to consider the entire record and then, on our own motion order a new trial in the interest of justice, as sec. 251.09, Stats., permits us to do. Examination of the record reveals to us nothing material which was not presented to and passed on by the jury. The testimony of Kegley, that in his estimation defendant’s driver was exceeding the speed limit would have sustained a finding to that effect if the jury had chosen to credit the testimony. But the jury did not so find and the jury is the judge both of the credibility of the witnesses and the weight to be given to their evidence. Jolitz v. Fintch (1938), 229 Wis. 256, 261, 282 N. W. 87; Lutsenberger v. Milwaukee E. R. & L. Co. (1937), 224 Wis. 44, 48, 271 N. W. 409. Just before the collision Kegley was 1,000 feet away, at night, and traveling in the same direction as the other two automobiles. He saw no brake lights, though the tractor-trailer’s brakes were applied. The jury chose not to believe or give weight to his estimate and that was within its province. The trial court noted no objection to the jury’s answer concerning defendant’s speed, and its memorandum shows that it thought the interests of justice were prejudiced only because of the form of the verdict dealing with Starry’s contributory negligence.

Our study of the record leaves us in the dark as to the cause of this accident. The jury found that it was the result of the sudden slowing or stopping of Starry’s automobile without a signal when he reached the highway intersection. There is no direct evidence in support but if we discard those answers as based on speculation there still was no other evidence which the jury was bound to believe oh which to found a different explanation. The burden of proof of defendant’s negligence is on the plaintiff and she has not been able to produce that proof to the satisfaction of the jury. We would have to indulge in much speculation of our own to hold that the fault lay here with defendant’s driver rather than with plaintiff’s intestate. We regard this as a question of fact on which the jury’s verdict respecting defendant’s negligence is conclusive.

By the Court. — Plaintiff’s motion for review denied. Order granting plaintiff’s motion for new trial reversed. Cause remanded with directions to reinstate the verdict and enter judgment dismissing the complaint.