Chappell v. Town of Oregon , 36 Wis. 145 ( 1874 )

Cole, J.

In this case the plaintiff moved, upon the minutes of the judge, to set aside the verdict and grant a new trial, for the reason that such verdict was contrary to and unsupported by the evidence in the cause. This motion was overruled, and the only exception relied on for a reversal of the judgment is the refusal of the court to grant this motion. It is claimed that the circuit court abused its discretion in denying the motion for a new trial. We think the rule of law applicable to the question raised cannot be more accurately stated than it is by Mr. Justice PAINE in Eaton v. Joint School District No. 3, 23 Wis., 374, and which is quoted on the brief of counsel for the plaintiff. He says: “ Where there is some evidence upon which the finding of the jury can fairly be supported, this court would not interfere with the action of the court below in refusing a new trial, although we might consider the verdict against the weight of evidence. But where there is no evidence to support the verdict at all, it is the duty of the court to set it aside, and of this court to correct its action, if it refuses.” See also Van Doran v. Armstrony, 28 Wis., 236, and cases there cited.

It seems to us, applying this rule to the case, we must affirm the judgment. It cannot be said that the verdict is unsupported by evidence. It may be admitted that' the testimony shows very satisfactorily that the plaintiff was guilty of no want of ordinary care and diligence in driving the team, or in sitting upon the seat in the manner he did, which did or could in any respect contribute to produce the injury of which he complains. But upon the question whether the rut or hole described in the evidence constituted a defect or insufficiency, and rendered the highway unsafe and dangerous to persons traveling thereon, there is a conflict in the testimony. It will not do to assume that the insufficiency is shown beyond all doubt, because an accident happened at that place to the plaintiff while driving along the road with due care. For accidents sometimes happen when np one can be said to be at fault, and which the law regards as misfortunes merely. In this case the jury, in view of all the testimony and of the law as laid down by the court for their guidance, might have concluded that the rut or hole in the highway did not constitute a defect, but that the road was reasonably safe and convenient for public use, and that the injury to the plaintiff was the result of pure accident. It is undeniable that there is testimony which tends to support such an inference; and as the court below did not think proper to set the verdict aside as being unsupported by the evidence, we do not feel warranted in saying that it erred in its ruling.

By the Court. — The judgment of the circuit court is affirmed.