#### Lines, Respondent, vs. City of Milwaukee, Appellant.

*November 18*

December *5, 1911.*

*Trial: Perverse verdict: Inadequacy of damages: Setting aside verdict: Review on appeal: Costs.*

1. Where plaintiff’s wrist was broken, causing much pain and probably impairing the use of his arm permanently, and he incurred obligations to the extent of $46 for medical treatment, etc., an award of $55.33 as damages was so inadequate as to justify the trial court in holding the verdict perverse.

2. Where the answer to one question in a special verdict indicates that the jury were actuated by passion and prejudice in returning such answer, it is the duty of the trial court to set aside the verdict, unless satisfied that the passion and prejudice affected only that particular question.

3. An order setting aside a verdict as perverse will not be reversed on appeal unless clearly wrong.

4. Where a verdict is set aside as perverse, the costs of the trial should not be charged against the moving party but may, in the discretion of the trial court, be ordered to abide the event of the second trial.

Appeal from an order of tbe circuit court for Milwaukee county: J. C. Ludwig, Circuit Judge.

*Affirmed.*

*Daniel W. Doan,*city attorney, and *W. D. Timlin, Jr.,*special assistant city attorney, for tbe appellant.

For tbe respondent there was a brief by *Lawrence A. 01-well,*and oral argument by *Rossiter Lines,*in person.

BaeNes, J.

Tbis action is brought to recover damages for an injury sustained by reason of falling on an alleged defective crosswalk at tbe intersection of Grand avenue and Fifteenth street in tbe city of *Milwaulcee.*Tbe jury found tbe defendant was not negligent and that plaintiff was guilty of contributory negligence. Apparently to emphasize tbe answers returned, tbe jury stated that they unanimously agreed on such answers. They further found that tbe plaintiff *547sustained damages by reason of Ms injury in tbe sum of $55.33. Tbe court set tbe verdict aside because satisfied “tbat tbe jury was grossly prejudiced and tbat its verdict is perverse.” Defendant appeals from this order.

Tbe undisputed evidence is tbat tbe radius of tbe left wrist was fractured; tbat plaintiff was obliged to keep bis arm in splints for about two months and tbat be suffered pain continuously during tbat time, as well as considerable pain thereafter, and tbat tbe use of tbe left arm was materially impaired at tbe time of tbe trial. There was medical testimony to tbe effect tbat it was reasonably certain that there would be some permanent impairment of tbe use of tbe arm. Tbe evidence fairly shows tbat tbe plaintiff incurred obligations to tbe extent of $46 for X-ray treatment, medical attendance, and medicines, although some technical objections are made to its sufficiency. It would thus appear tbat tbe jury allowed tbe plaintiff $9.33 for tbe pain and suffering which be endured from a broken wrist and for such impairment of tbe use of bis arm as be sustained. The inadequacy of tbe damages awarded would seem to be sufficient to justify tbe court in saying tbat tbe verdict was perverse and to warrant it, in tbe exercise of sound discretion, in setting tbe same aside for tbat reason. *Whitney v.*Milwaukee, 65 Wis. 409, 27 N. W. 39 ; *Gillen v. M., St. P. & S. S. M. R. Co.*91 Wis. 633, 65 N. W. 373. Indeed, where tbe answer to one question in a special verdict indicates tbat tbe jury were actuated by passion and prejudice in returning such answer, it is tbe duty of tbe court to set tbe verdict aside, unless satisfied tbat the passion and prejudice affected only tbat particular question. “If it appears tbat tbe elements of passion and prejudice may have entered into, and probably did affect, tbe decision of other questions in *the*case, tbe court’s duty is to grant a new trial absolutely.” *McNamara v. McNamara,*108 Wis. 613, 619, 84 N. W. 901. If the assessment of damages in this case did not establish *the*perversity of tbe verdict, we should hesitate to disturb the con-*548elusion reached by the court in this regard. A trial judge may observe many things in the conduct of a trial that satisfy him that jurors have been influenced by improper motives and that the verdict returned is founded on passion and prejudice rather than upon law and evidence. In such a case his duty to set aside a verdict is clear, although he might not do so if satisfied that the verdict was the result of honest judgment.

It is argued by the appellant, however, that the order appealed from is erroneous for the reason that the court should have directed a verdict for the defendant, because there was no evidence produced which would warrant a jury in holding the defendant negligent, and because the plaintiff was guilty of contributory negligence as a matter of law. If either of these contentions is correct, then any prejudice the jury might have had could not injuriously affect the plaintiff. We have read the evidence carefully. We are satisfied that it was ample to warrant a finding favorable to the plaintiff on both •questions, and as there must be another trial of the action we •deem it best to refrain from discussing it.

It is further argued that the court erred in ordering that the costs of the first trial should abide the event of the next •one. It has been frequently held that, where a verdict is set aside on the ground of perverseness, the costs of the trial should not be charged against the moving party. *Pound v. Roan,*45 Wis. 129; *Becker v. Holm,*100 Wis. 281, 75 N. W. 999; *Schweickhart v. Stuewe,*75 Wis. 157, 43 N. W. 722; *R. Connor Co. v. Goodwillie,*120 Wis. 603, 606, 98 N. W. 928. We think it was within the discretion of the court to make the order which it did in reference to costs, and that there was no error committed against the appellant in this regard.

*By the Court.*— Order affirmed.

TimliN, J., took no part.