Sec. 270.49, Stats.State v. Hibicke (1953), 263 Wis. 213, 56 N.W.2d 818; Kies v. Hopper (1945), 247 Wis. 208, 19 N.W.2d 167. ". . . it is the general rule that where discretion is conferred upon a trial court, the appellate court is not to reverse the trial court unless the record demonstrates that there has been an abuse of discretion. Mueller v. Michels (1924), 184 Wis. 324, 341, 197 N.W. 201, 199 N.W. 380. The appellate court is not authorized to substitute its discretion for that of the trial court."
We conclude that it was an abuse of discretion to order a new trial. Alexander v. Meyers (1952), 261 Wis. 384, 386, 52 N.W.2d 881; McCoy v. Terhorst (1926), 188 Wis. 512, 517, 518, 205 N.W. 420. Accord: Kies v. Hopper (1945), 247 Wis. 208, 211, 19 N.W.2d 167; Bolssen v. Heenan (1958), 3 Wis.2d 110, 116, 88 N.W.2d 32.Holtz v. Fogarty (1955), 270 Wis. 647, 651, 72 N.W.2d 411. Accord: Myhre v. Hessey (1943), 242 Wis. 638, 9 N.W.2d 106, 150 A.L.R. 889.
See Alexander v. Meyers (1952), 261 Wis. 384, 386, 52 N.W.2d 881. In Kies v. Hopper (1945), 247 Wis. 208, 211, 19 N.W.2d 167, this court cited with approval the language in McCoy v. Terhorst (1926), 188 Wis. 512, 517, 518, 205 N.W. 420, that: "`In such cases we do not reverse merely because, upon the record before us, we come to a different conclusion. It must clearly appear that there was an abuse of judicial discretion before we reverse.
When a trial court grants a new trial in the interest of justice pursuant to sec. 270.49 (2), Stats., and the order therefor sufficiently sets forth the reasons which prompted the court to take such action, this court will not disturb such order in the absence of a clear abuse of judicial discretion. Alexander v. Meyers (1952), 261 Wis. 384, 386, 52 N.W.2d 881; and Kies v. Hopper (1945), 247 Wis. 208, 211, 19 N.W.2d 167. There are sound policy reasons in support of such rule. As Mr. Chief Justice ROSENBERRY well stated in his opinion in Sichling v. Nash Motors Co. (1932), 207 Wis. 16, 21, 238 N.W. 843:
"The granting of a new trial in the interest of justice is highly discretionary, and the order, although reviewable, will not be reversed by the supreme court unless it clearly appears that there was an abuse of judicial discretion." Syllabus, Kies v. Hopper (1945), 247 Wis. 208, 19 N.W.2d 167. We need examine the trial court's reasons no further than to find one sufficient to justify the order for the new trial as an act within the trial court's discretion.
"`It is well settled in this state that a new trial granted in the interest of justice is a highly discretionary order, and that, while it is not beyond the power of this court to review it, in order to reverse it must clearly appear that there was an abuse of judicial discretion.'" Kies v. Hopper (1945), 247 Wis. 208, 211, 19 N.W.2d 167, and cases there cited. ". . . No order granting a new trial in the interest of justice shall be valid or effective, unless the reasons that prompted the court to make such order are set forth in detail therein. . . ."
The trial judge in the order granting a new trial stated as his reasons therefor, (1) with respect to damages, that the verdict is perverse and reflects bias and prejudice on the part of the jury, (2) that the evidence fails to establish a fair standard as a basis for compensation of plaintiff's wage loss and the medical proof is so indefinite and uncertain with respect to the plaintiff's disability that any allowance required resort to speculation and conjecture on the part of the court and jury, and (3) that a new trial as to damages is in the interest of justice. These reasons were sufficient to warrant the court's action if the record discloses a sufficient basis for them. Kies v. Hopper, 247 Wis. 208, 19 N.W.2d 167. The doctors agree that there was a pre-existing condition in plaintiff's back — arthritis.
The granting of a new trial is in the discretion of the trial judge and the supreme court can only reverse where there is a clear abuse of discretion shown. Kies v. Hopper (1945), 247 Wis. 208, 19 N.W.2d 167; Sichling v. Nash Motors Co. (1932), 207 Wis. 16, 238 N.W. 843; Fontaine v. Fontaine (1931), 205 Wis. 570, 238 N.W. 410. However, we must reverse this order granting a new trial because the reasons set forth as prompting the court to make such order are not warranted by the evidence.
This is because the trier of fact is in the best position to observe the manner and demeanor of the witnesses. SeeKies v. Hopper, 247 Wis. 208, 210-11, 19 N.W.2d 167 (1945). The trial court concluded, based upon the totality of the circumstances established at trial, that D'Acquisto remained in the tree for the purpose of hunting deer after hunting hours and adjudged him guilty.