
    Schlag, Respondent, vs. Chicago, Milwaukee & St. Paul Railway Company, Appellant.
    
      January 10
    
    January 28, 1913.
    
    
      New trial: Furtherance of justice: Perjury of witnesses: Discretion': Imposition of costs: Review on appeal: Evidence: Matters of common Knowledge: Change of conditions.
    
    
      Í. A new trial granted in furtherance of justice upon the ground (not stated in plaintiff’s motion) that certain witnesses, employees of the defendant railway company, had on the trial directly contradicted their own testimony taken a short time before on their examination by plaintiff as adverse witnesses, and ■ that plaintiff therefore had not had a fair opportunity to present his case, was granted in the exercise of the discretion vested in the circuit courts, and will not he disturbed on appeal unless that discretion was abused.
    2. The failure in such case to impose costs as a condition of granting the new trial, for the reason, as stated by the trial judge, that it was granted for a cause not within the control of the plaintiff, if error (a point not decided), was a mistake of law and does not show that the order was not a discretionary one.
    8. Although in such case the plaintiff, with full knowledge of the facts, proceeded with the trial without protest and without claim of surprise and elected to take his chance of securing a favorable verdict, nevertheless the granting of the new trial on the ground above stated was not clearly an abuse of discretion.
    4. Even if, upon the evidence as it stood, no case had been made out by plaintiff, so that under ordinary circumstances defendant would have been entitled to a directed verdict, it would not follow that the order granting a new trial should be reversed.
    6. The discretionary power of the circuit court to award new trials should be courageously and fearlessly exercised whenever the trial judge is convinced that to enter judgment on a verdict returned would result in a miscarriage of justice.
    6. What was at one time a fact so well understood that courts might properly take notice of it as a matter of common knowledge, may not be a fact at a later time, because of changed conditions.
    7. Thus, although this court in 1895 recognized it as a matter of common knowledge that no spark arrester had yet been devised which would wholly prevent a locomotive from throwing live sparks (Menofoinee River 8. & D. Go. v. M. & N. R. Go. 91 Wis. 447, 459), this did not preclude a person suing for an injury caused in 1911 by a live spark coming through the window of a passenger car in which he was riding from showing what the fact then was as to such devices.
    Appeal from an order of the circuit court for Sauk county: E. Rat Stevens, Circuit Judge.
    
      Dismissed.
    
    For the appellant there was a brief by O. E. Van Alstine, E. J. Killilea, and F. E. Bentley, and oral argument by ‘Mr. Killilea and Mr. Bentley.
    
    For the respondent there was a brief by Grotophorst, Evans & Thomas, and oral argument by H. H. Thomas.
    
   BabNes, J.

This is an appeal from an order setting aside a verdict in favor of the defendant and granting a new trial. The circuit judge filed an opinion in which he gave the following reasons for setting the verdict aside:

“The record presents the unusual situation of witnesses directly contradicting their own sworn testimony taken but a short time before the trial with reference to matters which were equally within their knowledge at both times when they were on oath. The record shows no satisfactory explanation of their complete and deliberate contradiction of themselves:
“The plaintiff had a right to rely upon the fact that these witnesses would testify to the same facts upon the trial as they did upon the adverse examination. If personally present at the trial they could be called to the stand; if not in the court room, their adverse examination could be read. Relying upon it and being deprived of this testimony by this un- . explained contradiction of their own sworn testimony, the court concludes that the plaintiff has not had a fair opportunity to present his case. For this reason the verdict will ¡be set aside and a new trial granted. In view of the fact that the motion is granted for a cause not within the control of the plaintiff, the costs of the first trial will abide the event of the action.”

It seems very plain, from tbis opinion tbat tbe circuit judge did not grant tbe new trial because be deemed tbe verdict perverse or because be thought be bad committed error to tbe prejudice of tbe plaintiff. Tbe court did think tbat a new trial should be granted in furtherance of justice because certain of tbe defendant’s witnesses testified differently on tbe trial than they did on their previous adverse examinations. Tbe court was of tbe opinion that tbe plaintiff bad a right to assume tbat there would be no material change in tbe evidence of these witnesses, and tbat be was entitled to rely on such evidence when be came to prepare bis case for trial and not search for other witnesses by whom tbe same facts might be established. It is obvious tbat tbe new trial was not granted because of any error committed by tbe court or jury, but was granted in tbe exercise of tbe discretion vested in circuit courts to award new trials when tbe interests of justice demand such action. Tbis being so, tbe order will not be disturbed unless tbe court abused tbe discretion vested in it. R. Connor Co. v. Goodwillie, 120 Wis. 603, 98 N. W. 528; Lessig v. Lessig, 136 Wis. 403, 117 N. W. 792; Pierson v. Citizens’ T. & T. Co. 135 Wis. 73, 115 N. W. 336; Herring v. E. I. Du Pont de Nemours P. Co. 145 Wis. 521, 130 N. W. 454; Comstock v. Buckley, 147 Wis. 524, 133 N. W. 581. On tbe motion for a new trial tbe respondent insisted tbat tbe court bad committed error during tbe trial, but these contentions were overruled in tbe opinion from which tbe quotation is taken. One consideration urged by tbe appellant in support of its assertion tbat tbe order was not a discretionary one, was tbe failure to impose costs as a condition of granting tbe new trial. Tbe court specifically states why costs were refused. It may have been wrong in refusing them, but if a mistake was made it was a mistake of law and was due to a belief on tbe part of tbe trial judge tbat be bad tbe right to refuse costs where a new trial was granted as a matter of favor and not of right under tbe circumstances of this case. No error is assigned because of tbe refusal to allow costs, 'and for tbis reason we do not pass upon tbe right of tbe defendant to have costs awarded to it. As further bearing on tbe proposition that tbe order was a discretionary one, it might be said that tbe new trial was granted on a ground not urged by tbe respondent in its motion for a new trial.

Tbe real question that confronts tbis court is: Did tbe trial court abuse its discretion in setting aside tbe verdict ? Tbe lower court has not left us in tbe dark as to its reasons for making tbe order. It has stated them certainly, definitely, and affirmatively, and tbe maxim Expressio unius esi exclu-sio altering should be applied when we are considering tbe decision.

Tbe plaintiff lost an eye by being struck with a live spark which came through a car window while he was a passenger on one of defendant’s trains. In an examination under see. 4096, Stats., one Torgeson, tbe engineer on tbe train, testified that if tbe spark arrester was in good condition tbe locomotive would not throw live sparks. On tbe trial be testified to tbe contrary. Tbe fireman, Knope, on bis adverse examination testified that if tbe spark arrester was in proper working order it would not throw sparks. He adhered to tbis statement on tbe trial. Edmonds, tbe roundhouse foreman, testified on tbe examination under sec. 4096 that a spark arrester in good condition should not throw live sparks, and also that all locomotives throw live sparks more or less. On tbe trial there was no very substantial variance from this evidence. William Smith, locomotive inspector, testified as an adverse witness that be examined tbe spark arrester of the locomotive tbe day before tbe accident and applied a gauge to tbe netting in one or two places to see if tbe spaces therein were of tbe proper size. On tbe trial be testified to making a much more thorough examination of tbe screen.

It was because of variances in tbe evidence of these witnesses that tbe court granted tbe new trial. Tbe most material and substantial change was in tbe evidence of the engineer, Torgeson. If bis first testimony was true, it would follow almost as a matter of course that tbe spark arrester was defective. It would then become important to show that .the inspection was carelessly or perfunctorily made, and at tbe trial Smith testified to a very different kind of an inspection from that testified to on tbe examination before trial.

Tbe appellant contends that tbe evidence clearly shows that no spark arrester has yet been devised which will prevent a locomotive from throwing live sparks, and that this court recognized this fact to be a matter of common knowledge in Menominee River S. & D. Co. v. M. & N. R. Co. 91 Wis. 447, 459, 65 N. W. 176; that plaintiff did not offer any evidence before resting bis case tending to show that a spark ar-rester in good condition would prevent tbe emission of live sparks; that tbe evidence given by these witnesses on their adverse examinations >vas placed before tbe jury and plaintiff bad the benefit of it; and that during tbe progress of tbe trial plaintiff made no claim of surprise and made no application for a continuance for the reason that be bad failed to secure or to attempt to secure other evidence because of reliance on tbe belief that these witnesses would not change their testimony.

Tbe most significant circumstance in favor of defendant’s contention is that plaintiff, with full knowledge of tbe facts, .proceeded with tbe trial without protest and without claim of surprise and elected to take bis chances on securing a favorable verdict. Granting a new trial on such a state of facts savors somewhat of permitting tbe plaintiff to experiment with successive juriési However, this court is very loath to interfere with tbe discretion to grant new trials that is vested in circuit judges. It is a power that, should be courageously and fearlessly exercised whenever a trial judge is convinced that to enter judgment on a verdict returned would result in a miscarriage of justice. It is very possible that this important power is used more sparingly than it should be. However this may be, it is only in a clear case of an abuse of discretion that this court will interfere. It is not an uncommon thing for a witness to swear differently at different times. Very often the witness is endeavoring to tell the truth on each occasion. Frequently the change is due to the desire to help himself or some friend in the prosecution or defense of a lawsuit. These variances are so common that they rarely attract very much attention, certainly not as much as they should. It is quite evident that the circuit judge regarded the change of testimony with suspicion and thought that because of it the plaintiff might lose a meritorious cause of action if the verdict was allowed to stand, and we are unable to say that in doing so he abused the discretion vested in him.

The appellant insists that the ruling was wrong in any event because the defendant was entitled to have a verdict directed. If it were true that upon the evidence as it stood no case had been made against the defendant, it would not follow that the order should be reversed. The plaintiff’s position is that a proper spark arrester would not emit live sparks. On another trial he may be able to secure credible testimony on that point. The Menominee River S. & D. Co. Case was decided seventeen years ago. Since that time spark arresters may have been contrived which for aught we know will wholly prevent the emission of live sparks. What was common knowledge seventeen years ago may not be common knowledge now, because of changed conditions. The plaintiff was and is entitled to show what the fact is, regardless of what is said in the case referred to. While the evidence of these witnesses given before trial was admitted, its probative force was no doubt weakened by their subsequent contradictory statements. It is apparent that the circuit judge be-]i:'”e;l that some of the witnesses had committed perjury and that the false testimony in all probability lessened the plaintiff’s chances of recovery and likewise misled him. If the judge entertained such beliefs, it was not only his right but his duty to act upon them. It is not sufficiently clear that no legitimate grounds existed which would justify such beliefs to warrant this court in reversing the order.

By the Court. — The appeal is dismissed.  