(186 N.W.)

nevertheless also true that, when a court of the question of contributory negligence to last resort takes up a correlated subject- the jury. All that is absolutely necessary to matter stating that it intends to decide it, fully dispose of the appeal is to so decide and does so, such decision is not a mere obi- But there may also be presented questions ter dictum. It is at least a judicial dictum. of pleadings, of evidence, of instructions to Buchner v. Chi., Mil. & N. W. Ry. Co., 60 the jury, of whether defendant was guilty Wis. 264, 19 N. W. 56. In Reiter v. Grober of gross negligence, etc. These the court will we were asked to apply the rule of Prideaux consider and decide for the future guidance v. Mineral Point and to extend it to include of the trial court in that case upon a retrial, the situation then presented. The court and for trial courts generally. It has never therefore had up for consideration the valid-been considered that the points so decided ity of the rule in Prideaux v. Mineral Point are obiter dicta because not essential to a as well as its extension, for when a rule of decision of the case in which they are de law is applied the court must assume its cided. It is deemed the doctrine of the case validity even if it does not expressly state is that when a court of last resort inten. it. So when we were asked to take the rule tionally takes up, discusses, and decides a in Prideaux v. Mineral Point and extend it, question germane to, though not necessarily we were asked to recognize or continue the decisive of, the controversy, such decision is rule and extend it to the situation before not a dictum, but is a judicial act of the us. In answer we said we will not only not court which it will thereafter recognize as a extend the rule, but we will not hereafter rec-binding decision. ognize it as a valid or just rule. True, we could have said we will not extend it and that would have decided Reiter v. Grober. But, having the rule before us as we did for recognition and extension, we deemed it an opportune time to say that we would neither recognize nor extend the rule.

[4] That a subject-matter so considered is more than a mere obiter dictum see cases cited in Hall v. Madison, 128 Wis. 145, 107 N. W. 31. That they appear in a dissenting opinion does not militate against their worth upon the point now under consideration. The federal Supreme Court states the rule thus: "Where there are two grounds, upon either of which the judgment of the trial court can be rested, and the appellate court sustains both, the ruling on neither is obiter, but each is the judgment of the court and of equal validity with the other." Union P. R. Co. v. Mason City & Ft. D. R. Co., 199 U. S. 160, 166, 26 Sup. Ct. 19, 20 (50 L. Ed. 134).

In Reiter v. Grober the case could have been disposed of as it was either by overruling the doctrine as to imputed negligence or by refusing to extend it. We said we not only refused to extend the doctrine, but that we expressly overruled it. We decided it on two grounds either of which effectively affirmed the judgment below. A further statement in the federal case above cited is here applicable to the effect that

In the present case this question is not so vital, because the court has heretofore in another case than that of Reiter v. Grober overruled the doctrine of Prideaux v. Mineral Point in so far as the present question is concerned. This was done in Brubaker v. Iowa County (decided July 13, 1921) 183 N. W. 690, in which it was held that the contributory negligence of the husband was not imputable to his wife, who rode with him when she was injured because of a defective highway.

a

[5, 6] Does the fact that when an appealable judgment is entered by a trial court it is in accord with the then law make it the law of the case? If it does, then this court cannot apply to it the rule of law it has twice announced within a year. As stated in Reiter v. Grober, the rule of imputed negligence was not a rule of property in which any one had a vested right, but was a pure rule of judicial construction in negligence cases, and that no one could say he relied upon it because such reliance would stamp him wrongdoer-convict him of willful negligence. It was therefore held that the court could change the rule, and such change became applicable to all future cases coming before it unless the law of the case had been otherwise declared by this court as in John v. Pierce, 186 N. W. 600, decided herewith. The judgment of a trial court that is appealed from cannot establish the law of the case. That must be established by this court in the decision upon the appeal. A lawful change in a judicial rule not amounting to a rule of property or its equivalent by a court of last resort becomes effective at once, and thereafter, upon subsequent appeals, operates See, also, Florida Cent. R. Co., v. Schutte, alike upon acts coming within it whether oc103 U. S. 118, 26 L. Ed. 327. Thus it fre- curring before or after its announcement. quently happens that a negligence case, for Kneeland v. Milwaukee, 15 Wis. 454; Mason instance, may have to be reversed because v. Nelson, 148 N. C. 492, 62 S. E. 625, 18 L. the trial court erred in refusing to submit R. A. (N. S.) 1221, and note, 128 Am. St. Rep.

"Whenever a question fairly arises in the course of a trial, and there is a distinct decision on that question, the ruling of the court in respect thereto can, in no just sense, be called a mere dictum." 199 U. S. 166, 26 Sup. Ct. 20, 50 L. Ed. 134.

635; 7 R. C. L. 1010; 26 Am. & Eng. Ency. 14. New trial 72-Granting new trial on of Law, 179.

[7] Defendant asks that in the event the judgment is not affirmed a new trial be granted because it is claimed the questions of the contributory negligence of the deceased and whether her death was proximately caused by the accident were not as fully tried as they should have been. The contributory negligence of the deceased, if established, would have been a complete bar to the cause of action. Presumably it was not litigated because none was conceived to exist. She was a mere passenger in the automobile driven by her host, Johanna Glaeser. The jury found that the death of the deceased was proximately due to the accident. If this had been disproven, it would have been a bar to the bulk of the damages found and should have been fully litigated as well as plaintiff's contributory negligence. Cases cannot be tried piecemeal.

Judgment reversed, and cause remanded, with directions to enter judgment for plaintiff for $3,390, with interest and costs.

SIEBECKER, C. J., took no part,

JOHN v. PIERCE.

(Supreme Court of Wisconsin. Feb. 7, 1922.) 1. Appeal and error 933 (4)-Order setting aside verdict for plaintiff on condition he pay costs presumed granted on ground of weight of evidence.

ground verdict was against weight of evidence held not abuse of discretion, though court on appeal had intimated different opinion.

Where the court, on a former appeal from a judgment for plaintiff, in an action for injuries from a collision between automobiles, decided that the negligence of the driver of the car in which plaintiff was riding was a defense, but that he was not guilty of contributory negligence as a matter of law, the trial judge, on retrial, did not abuse his discretion in setting aside a verdict for defendant and granting a new trial on the ground the verdict was against the weight of the evidence, though he took a different view of the merits of the case than did the Supreme Court; the evidence being such that conflicting conclusions might be reached by different persons. Rosenberry, J., dissenting.

Appeal from Circuit Court, Milwaukee County; John J. Gregory, Judge.

Action by August F. John against Frederick L. Pierce. Verdict for defendant. From an order setting aside the verdict and granting a new trial, defendant appeals.

Affirmed.

For opinion on former appeal, see 172 Wis. 44, 178 N. W. 297.

This is an action brought by plaintiff to recover damages for personal injuries sustained by him as the result of an automobile collision which occurred on one of the highways in Waukesha county on the Plaintiff was 18th day of August, 1918. riding as an invited guest in the automobile of one William B. Johnson, who was at the An order granting a new trial without stat-time driving the car. The Johnson car was ing grounds will not be disturbed, unless the proceeding in a westerly direction, and court abused its discretion; the presumption at a curve in the highway they met defendbeing the court having imposed costs as a con- ant's car, which was being driven by his dition, that the order was granted because of daughter. errors by the jury or because the verdict was contrary to the weight of the evidence, since costs cannot be imposed if a verdict is set aside for errors of the court.

Defendant's car was on the north or left-hand side of the road, and, according to the testimony on behalf of the plaintiff, was approaching at a speed of 30 miles an hour. The testimony on behalf of the plaintiff is to the effect that when Johnson discovered the approaching Pierce car it was then within a distance of 75 feet. Johnson, perceiving that the Pierce car was on the north side of the road, and, fearing that he could not avoid a collision by keeping his car to the right, suddenly turned it to the left. The Pierce car was turned to. the right, and a collision occurred on the south side of the highway. This case was here upon a former appeal (172 Wis. 44, 178 N. W. 297) from a judgment in plaintiff's favor; the same having been rendered upon a special verdict of the jury, which found the driver of the defendant's car guilty of negligence and absolved Johnson, plaintiff's host, from contributory negligence in turning to the left. The judgment was.

(186 N.W.)

reversed upon that appeal and remanded for refrained from holding that the evidence a new trial. Upon the second trial the jury showed him to have been negligent as a returned a special verdict by which it was matter of law, and remanded the case for found that the driver of the defendant's car રી new trial. Appellant upon this appeal. was not negligent, and that Johnson, the contends that it was held on the former apdriver of the car in which plaintiff was rid-peal that Johnson was negligent as a matter ing, was negligent.

The plaintiff moved to set aside the verdict on numerous grounds. The trial court set aside the verdict and granted a new trial, upon condition that plaintiff pay the costs. From such order granting a new trial the defendant brings this appeal.

of law. However, such is not the case. The judgment was reversed because of errors of the court in instructions refused and in instructions given to the jury. This implies that Johnson could not be held negligent as a matter of law upon the record then before us. On the other hand, it is now contended by the respondent that the negligence

Van Dyke, Shaw, Muskat & Van Dyke, of of Johnson is no defense to the action, as Milwaukee, for appellant.

by the decision of this court rendered in

Glicksman, Gold & Corrigan, of Milwau- Reiter v. Grober, 173 Wis. 493, 181 N. W. kee, for respondent.

739, the principle of law formerly prevailing in this state that the negligence of the driver of a vehicle is imputed to the passenger, was overruled, and that, as such negligence is not now imputed to the passenger, it should be held in this case that the negligence of Johnson is no longer a material consideration. While this court will apply the rule announced in Reiter v. Grober, supra, to cases hereafter coming before it (Chase, Adm'r, v. American Cartage Co., 186 N. W. 598, decided herewith), it cannot be applied to this case for the reason that upon the former appeal it was specifically declar

OWEN, J. (after stating the facts as above). [1] No reason was given by the trial court for setting aside the verdict and granting a new trial. In view of the fact that the order was made on condition that plaintiff pay the costs, the presumption is that it was granted by reason of errors committed by the jury, or because the verdict was considered contrary to the weight of the evidence, and in our consideration of the case we shall so assume. Costs could not have been imposed if the verdict had been set aside for errors of the court. Second Na-ed that the negligence of Johnson constitional Bank, v. Smith, 118 Wis. 18, 94 N. W. 664. The order, therefore, was a discretionary one, and will not be distributed by this court unless there appears to have been an abuse of discretion on the part of the trial court.

[2] The rule which governs this court in determining whether there was such an abuse of discretion, as stated in Kittner v. Railroad Co., 77 Wis. 1, 45 N. W. 815, is that, where opposite conclusions may reasonably be drawn from the evidence by different persons, the granting of a new trial on usual terms, upon the ground that the verdict was against the weight of evidence, is not an abuse of discretion.

tuted a defense to the action. While the question was not there discussed as a novel proposition, it was declared to be the wellsettled law of this state, and the case was disposed of upon the theory that Johnson's negligence defeated plaintiff's right to a recovery. In the absence of such an assumption this court would not have reversed the former judgment, but would have remanded the case with instructions to render judgment in favor of the plaintiff, as no error was found inducing the affirmative finding of the jury upon the question of defendant's negligence. Whenever legal propositions are laid down upon an appeal, they become the law of the case upon all future trials or appeals, whether right or wrong. Jeffery v. Osborne, 145 Wis. 351, 129 N. W. 931.

So far as the negligence of the defendant is concerned, it is plain that different persons may reasonably draw opposite conclusions with reference thereto, and this is evi- [4] Upon the former appeal it was decided denced by the fact that the first jury found in effect that Johnson's negligence constithe driver of the defendant's car negligent, tuted a defense to the action, and that Johnwhile the second jury exonerated her from son was not guilty of contributory negiinegligence. That such is the state of the gence as a matter of law. From this it necevidence concerning the defendant's negli-essarily follows that the evidence bearing gence is not challenged by either party. upon Johnson's negligence is susceptible to [3] A much closer question is presented, opposite conclusions by different persons, however, when we come to consider the and that under the rule which governs us negligence of Johnson, the driver of the we cannot say that the trial judge abused car in which plaintiff was riding. The his discretion in setting aside the verdict evidence on that question was substan- and granting a new trial. And this is true tially the same on both trials. Upon the even though, as is apparent, the trial court first appeal this court indicated its dissat- takes a different view of the merits of the isfaction with the verdict of the jury which case than that entertained by this court. exonerated Johnson from negligence, but There was no attempt in the former opinion

to conceal the view entertained by this court, concerning the weight of evidence so far as it related to Johnson's negligence. That opinion is still entertained. But the rules of judicial procedure do not permit us to dispose of the case in accordance with such views. Under our system the jury is the final arbiter of disputed questions of fact. A discretion is vested in the trial court to grant a new trial when he feels that the verdict is against the weight of evidence, and this court will not disturb his action in that respect where the evidence is such that conflicting conclusions may be reached by different persons.

The order appealed from is affirmed.

Appeal from Circuit Court, Milwaukee case testified that at the time the plaintiff County; Oscar M. Fritz, Judge.

(186 N.W.)

the station platform, and that she was run- the company and cashed it; that in fact she ning at that time; that the train was moving did not read the release or the check that, at when she arrived at the steps of the coach the time one of the duplicate releases was which she intended to board; that she start-presented to her for signature, Young placed ed to run along with the train, and that she let the fourth coach pass by; that the train was going somewhat faster than the plaintiff was running, and that in attempting to grab the handrail alongside of the steps of the coach she was swung around and thrown down onto the platform.

William H. Horn, Thomas Sommers, and James A. Sullivan, all employés of the Newport Chemical Company at Carrolville, Wis., arrived at Allis station at or about the time that the plaintiff arrived, and saw the plaintiff running to catch the train, and testified that the train was moving at the time she attempted to board it.

his hand over the release so as to hide the contents thereof, but that when she signed the other duplicate release Young did not hide the contents of the release with his hand, and that she could have read it if she desired; that before she signed the release, Young told her that she could not sue the United States government, because the railroads were in the control of the government; that Young also said to her, before she signed the release, that if she did not trust him he could not trust her; that he was paying the sum of $210 in satisfaction of her claim for damage to her clothes, for her doctor bill, and for attendance, and that the claim for personal injuries would receive attention later on, and would be taken care of.

The case was submitted to the jury on a special verdict, and the jury answered among other things: (1) That the plaintiff was injured on February 28, 1920, while boarding defendant's car; (2) that the car was suddenly jerked while the plaintiff was in the act of boarding it; (3) that the plaintiff did not attempt to board the car in question after it had started and while moving; (4) that the negligence of the company in starting the car with a jerk was the proximate cause of the injuries; (5) that the negligence of the company was the proximate cause of plaintiff's injuries; (6) that the plaintiff was free from contributory negligence; (7) that the plaintiff did not execute and deliver to the defendant a release and satisfaction in writing for all personal injuries and damages to her clothing in full, for the sum of $210; (8) that the plaintiff did not know before she cashed the check that it was in full settlement of her claim against the defendant.

One Carl L. Young, an assistant claim agent of the defendant company, whose office was on the fourth floor of the Railway Exchange Building, Milwaukee, testified: That after the accident he visited the plaintiff at her home, for the purpose of making a settlement with her, and that some time thereafter, the plaintiff called upon him at his said office. That the plaintiff and witness discussed the matter of settlement. That witness made an offer to settle her claim for $210, which offer was accepted by the plaintiff; that thereafter he prepared and presented to the plaintiff a release in duplicate, under and pursuant to the terms where of the plaintiff agreed to and did make a settlement of her claim with the railway company, which release provided, among other things, for a full discharge of the company from all claims and demands which she then had against the company by reason of the injuries received by her, and for damages for loss of and injury to her clothing and other personal property. That when said release was handed to the plaintiff she read the same, and, at the request of the witness, wrote in her own handwriting, over her signature, the following, to wit: "I have readings: and understand this release." That thereupon the witness handed to the plaintiff a check of the company for $210, which check, among other things, contained the following: "In full settlement of claim for injuries received and loss and damage to clothing." The witness also testified that he advised the plaintiff that she could take the check down to the office of the company on the first floor of the building, and have the same cashed, and that the plaintiff then left the office of the witness, and proceeded to the railway company's office and cashed the check.

The plaintiff testified that she signed the release in duplicate, and that she also wrote the portion above referred to, "I have read and understand this release"; that she received the check and took it to the office of

Upon the receipt of the verdict, the trial court made in substance the following find

"The plaintiff was induced by the claim agent by reason of his falsely representing that she would be defeated in a case for her personal injuries, and that the $210 paid was in the nature of a gift, and at least not to cover any claim made by her except for loss or damage to personal property, and that it was a mere receipt, and that he substantially kept her from reading it by covering it with his hand, and by stating to her that if she could not trust him he could not trust her."

The circuit court thereupon filed a written opinion, wherein it held and found that, because of manifest prejudicial error in the trial of the action in the civil court, the defendant has not had a fair trial thereof in said court, and that substantial justice cannot otherwise be done than by reversing the