Prahl v. Hogensen , 190 Wis. 419 ( 1926 )

Vinje, C. J.

This case was here on a former appeal, 185 Wis. 37, 200 N. W. 660, and it was held that the verdict rendered as to damages was perverse because of their inadequacy, and the case was reversed and sent back for a new trial. In disposing of the case on the second trial, Judge Schinz, in suggesting a doubt as to plaintiff’s freedom from contributory negligence, says:

“However, upon the appeal of this case to the supreme court from the judgment rendered upon the jury’s verdict in the first trial, the supreme court sent the case back for trial, and I am inclined to the view that in so doing the supreme court sub silentio at least determined that the question of negligence on the part of both parties was one for the jury. I have treated the opinion and decision on the former appeal as the law of the case.”

The trial judge was correct in his interpretation of the opinion of this court, though it was not the intention of this court to declare more than that the verdict was perverse as to damages and that one or both of the drivers must have been negligent. This court should have gone further upon the first appeal and determined whether either driver was negligent as a matter of law, a question that now confronts us in Rubach v. Prahl, post, p. 421, 209 N. W. 670. But its attention was limited to the perversity of the verdict as to damages, and the question of the negligence of either driver as a matter of law was not considered.

In view of the trial judge’s doubt as to plaintiff’s freedom from contributory negligence, and of our own doubt as to any negligence shown on the part of the defendant, we feel that justice requires a reversal of the judgment and a new trial in order that both parties may have a trial freed from any inferences drawn from this court’s first opinion that the negligence of both drivers, or of any of the parties, was necessarily a question for the jury. Since a new trial must be had, we purposely forbear to detail our doubts as to defendant’s negligence in order that both parties may argue the question to the jury freed from expressions of this court as to the probative value of the facts shown by the evidence.

By the Court. — Judgment reversed, and cause remanded for a new trial.