#### McBride, Appellant, vs. Milwaukee Electric Railway & Light Company, Respondent.

*December 6, 1911*

January *9, 1912.*

*Street railways: Injury to passenger: Evidence: New trial: Error in charge: Excessive damages: Costs.*

1. In an action against a street railway company for personal injuries, plaintiff having testified to facts showing that she was a passenger, the negative testimony of several. conductors to the effect that they did not see or remember anything of such an. accident, did not raise any issue for the jury as to whether or not she was a passenger; and the fact that in his charge the trial judge spoke of her as a passenger was not such an error as warranted the granting of a new trial,

*2.*Defendant should he required to pay the costs of the trial as a condition of the granting of a new trial upon the ground that the damages awarded hy the jury to plaintiff are excessive.

Appeal from an order of the circuit court for Milwaukee county: OeeeN T. Williams, Circuit Judge.

*Modified.*

The appeal is from an order granting a new trial.

Eor the appellant there was a brief signed by *Rubin •& Lehr,*attorneys, and *Horace B. Walmsley,*of counsel, and oral argument by *Mr. W. B. Rubin*and *Mr. Walmsley.*

Eor the respondent there was a brief by *Van Dyhe, Roée-crantz, Shaw & Van Dyhe,*and oral argument by *James D. Shaw.*

Timlin, J.

After a special verdict in favor of the plaintiff, on motion for a new trial the court set aside this verdict on the ground that in his instructions to the jury he told them the plaintiff was a passenger. He had submitted no question in the special verdict covering that point. Plaintiff testified to facts which, if true, showed her to be a passenger. The conductor on one street car testified he did not see anything of any accident at the place in question and did not stop his *18car and go back and pick np an unconscious or an injured woman. Tbe conductor of another street car did not remember anything of such an accident. The conductor of a third street car saw nothing of such an accident. The conductor of a fourth street car did not remember of seeing anything of such an accident. The conductor of a fifth street car did not. see anything of such an accident. The conductor of a sixth street car did not see any such thing.

The first car left Grand avenue about 10:55 p. m. on May 25,1908, the night of the accident, the second at 11 p. m. the same evening, the third at 11:05 p. m., the fourth at 11:10 p. m., the fifth at 11:15 p. m., and the sixth at 11:20 p. m. The plaintiff’s testimony was that she left a theater on Milwaukee street south of Wisconsin street, to the best of her recollection, at about 10:45 p. m., and took a National avenue car at the comer of West Water street and Grand avenue. This testimony raised no issue for the jury on the question of whether or not the plaintiff was a passenger, although it had some probative force on the question of whether or not she was injured. The court was in error in granting a new trial on this ground. But the court before signing the formal order evidently gave the matter further' consideration and added that he, “being further of the opinion that the verdict is excessive, and would even in the absence of error in the charge warrant the setting aside of the verdict, in the discretion of the court,” granted a new trial. This ruling we could by no means interfere with as an abuse, of discretion, but the court failed to award costs against the defendant as a condition of granting a new trial on this latter ground. The order appealed from, therefore, is modified, and the cause remanded with directions to the circuit court to-require the defendant to pay the costs of the trial.

*By the Court.*— Order modified, and the" cause remanded for further proceedings. Costs awarded to appellant.