Grant County herald. [volume] (Lancaster, Wis.) 1850-1968, 1883-03-22
Prospects For Another Round.

VI the opinion OF the supreme tOuft, III
the McLimans' case, we are able to
present that opinion in full to the read
ers of THE HERALD some weeks before
it will be published through the regular
| channels.
A fair conception can be had of the
views taken by the opposite sides
through brief interviews had with coun-
sci for plaintiff and defendant. In an
swer TO question Col. Clark said he
did not know what the other side would
do now. 1t was the defendants next
move and he should, in few days,
move for taxation of costs. The other
side had a bill at Monroe and the de-
PENDANT had a bill at Madison. He
thought the other side might go to a
new trial but if they did the city had a
much stronger case now than before
The Colonel said that during Chief JUS
tice Ryan's lifetime the court was in
the habit of making some comment on
the testimony, in order to put stop to
further litigation, but in the present in
stance they made no comments what
ever, and consequently the other side
might go to q new trial. He did not
think the failure of the court TO do this
showed any indecision on the part of
the members of the court.
Capt. Bushnell was afterwards visited
and greeted with the inquiry, what
about the McLimans case, have you
anything to say in regard to it?''
II don't know as have"
"'Have you seen the opinion of the
Supreme Court?'
mo, knew about what it would be
and was willing to wait until it was
published"
You will 60 to trial again?"
''Most certainly. | have not seen
the plaintiff since the decision was re-
ceived but that is not necessary as her
course is so clearly marked out by COM
mon sense that there is no question
about it,.
"Where will the case be tried?"
"At the same place as before. 1t is
sent back to the same circuit"
In further conversation Capt. Bush
nell stated that he thought the opinion
was, if anything, favorable to the plain
tiff and that the court would vet find
that it would have to go back on its
record in the case.
The opinion of the Court is rs follows:
CHRISTINA McLIMASs, Appellant,
UersHS
THE Git OF LANCASTER, Respondent.
This action was brought to recover
damages for personal injuries to the plaintiff
by reason Of the insuffciency and want OF re-
pair OF sidewalk in said city, The cause was
fully tried and the evidence very yoluminous and
the plaintiff recovered a verdict of two thousand
dollars. The defendent made q motion to set
aside the verdict, and implicitly to grant new
trial in the cause, on the minutes, on the grounds
that the court erred in giving certain instructions
TO the Jury, IN rejecting certain instructions
asked by the defcndent, and because the verdict
was contrary to the law and the evidence and
the damages excessive.
The motion was granted by the late Judge
out giving any reason therefore, and before the
bill OF exceptions was agreed upon by counsel,
Judge Conger died. In the certificate of the
counsel on both sides that the bill of exceptions
contains all the evidence given the trial it is
stated that the new trial was granted upon the
ecdence, and not for any error in the instructions
TO the jury, and the causc was argued in this
court upon the mutual concession that the new
trial was granted because the verdict was against
the evidence.
The question as even thus limited is avery broad
one, and requires the consideration of the whole
evidence, as we do not and cannot know what
part, view or bearing of the evidence influenced
the mind of the presiding Judge to grant new
trial. The granting a new trial is within the
discretion of the court and its action is not to
be reviewed or reversed unless there clearly
an abuse of such discretion. 1t il certainly very
difficult il not impossible to determine whether
such discretion was abused in any given case
without knowing the subject matter upon which
II was exercised, or the reason which governed
its exercise
The judge before whom the case was tried
heard the testimony, observed the appearance
and bearing of the witnesses and their manner
OF testifyng and was much better qualified to
pass upon the crediblity and weight of their
testimony than this court can be. There are
many comparatively triiiing appearances and in
ctdents, lights and shadows, which are not pre-
served in the record, which may well have affect
ed the mind Of the judge as well the jury in
forming opinions of the weight of the evidence
the character and credibility OF the witnesses,
and of the very right and justice of the case.
These considerations cannot be ignored in de-
termining whether the Judge exercised a reason
able discretion or abused his discretion, in
granting or refusing motion for new trial
Being in utter ignorance of the considerations
which operated upon the mind of the learned.
impartial and just judge before whom this cause
was tried in granting the motion, perhaps we
ought to stop here, and not presume to challenge
the exercise of his judicial discretion, and to
look through this voluminous mass of testimony
to find grounds for holding that he abused his
discretion The abnse OF his discretion must
appear or be found in some way before we can
6isfn Fb IL Pm inn nm hn tnn I'm
ton is not whether from the limited knowledge
Of the testimony and its weight to be obtain ed
from this cold, impersonal and lifeless trans
cript OF the evidence. we would have granted
new trial in the case. But Ii is rather. whether
the judge who had many more and few more
reliable facilities for exercising a reasonable
discretion than we can have, abused that dis
erection. The difficulty of the case is apparent
But we have been asked to examine the evil
dence. and from that examination decide the
question, and out of Difference to the distn-
guished counsel. we have endeavored to do so.
II in that evidence we find any reasonable
ground for exercising the discretion of granting
a new trial in the case, or If in the evidence
find any reason which would warrant such an
exercise of judicial discretion, then the order
should be affirmed
1t would be improper and might prejudice the
rights OF the parties on another trial for us to
comment to any extent upon the testimony
its effect and we shall refrain from doing so.
On carefully reading the evidence, cannot
resist the impression that there consider
able uncertainty and conflict. LIST, AS TO the
precise location ard character of the defect in
the sidewalk which occasioned the plaintiffs in
jury, and end, as to the extent permanence and
consequences of that injury
As to the defect in the sidewalk. was it where
one plank was entirely gone, or where the plank
was broken and part of IL gone. or where plank
was broken near the middle and 10th pieces
\ mainedy There was evidence Of each. The
| exact place should be ascerfained as bearing
upon the question of notice, and the length OF
| time the defect had existed.
As to the injury, there was very wide dis
agreement in the medical evidence and according
to some of the medical witnesses the injury was
| slight and according to others it very great,
| and the damages awarded are commensurate
with very great injury. There might have been
| aud probably something in the health. men
| tai condition, character. appearance or manner
of testifying. il some OF these medical witnesses.
| which many have effected the weight which
/ should be given to their testimony and which in
| duced belief in the mind Of the learned judge
that the injury was exaggerated and the dam
ages awarded excessive.
] We think in view of the uncertain and con-
Trajectory character OF the evidence on these two
most important and material questions in ISSUE
the learned Judge might have thought 1t safer and
| better that another jury pass upon this evidence
| or as il might be modified or cOroborated by more
| or other testimony. in order to more certainly
| secure the ends Of justice.
| In this view of the case cannot say that the
1 learned Judge transcribed reasonable discre-
| tiou or abused his own discretion in granting a
new trial We not only regret and lament the
| death of the learned and just judge who tried
| this cause, as loss to the profession both on
the bench and at the bar, but regret that he
withheld his for his judicial action on
this motion, nearly the last of his official acts.
almost necessary to be known for an intelligent
decision of this question, until they passed with
himself beyond the possibility of human knowl-
| edge. The uncertainty and contradictory char
acjcr of the evidence are sufficient reasons for
| exercising the discretion of granting new trial