Three issues are raised on this appeal:
1. Is there any credible evidence to support the jury's verdict?
2. Was defense counsel's closing argument so prejudicial to plaintiff as to require a new trial?
3. Should this court invoke its power under sec. 251.09, Stats., and reverse the order as a matter of discretion?
Appellants contend that the jury verdict was not supported by the evidence. On review here when a jury verdict is challenged we have repeatedly stated the rule to be:
"[W]e must judge the jury verdict in the light of the familiar rules that (1) a jury verdict will not be upset if there is any credible evidence which under any reasonable view fairly admits of an inference supporting the findings, (2) this is particularly true when the verdict has the blessing of the trial court, and (3) the evidence is to be viewed in the light most favorable to the verdict."
Here the record demonstrates that Gregory crossed against the light in an effort to catch the second bus on the opposite corner of the intersection. Immediately prior to being struck Gregory could not be seen by the drivers of the oncoming vehicles because he was behind or in front of the bus. The truck driver slowed down when approaching the intersection, but when the two cars
Defense counsel's closing argument.
Appellants argue that defense counsel's references in closing argument were prejudicial when he referred to the wealth of Alfred Rodenbeck and to the fact that a verdict for plaintiff would result in increased automobile insurance rates. In making this argument appellants face three hurdles, none of which they can clear. First, no objection was made to counsel's argument. Absent such an objection, this court will not consider the issue.
In an effort to overcome these obvious difficulties, appellants submit an affidavit from Gregory's mother stating that the closing argument of defense counsel was prejudicial. Affidavits may not be used to prove facts not
Reversal in the interest of justice under sec. 251.09, Stats.
The final argument made by appellants is that this court should invoke its discretionary power under sec. 251.09, Stats., and reverse the order of the trial court. This court will not exercise this discretion unless it is convinced that there has been a probable miscarriage of justice—viewing the case as a whole.
Appellants advance two contentions as to why they believe there has been a miscarriage of justice here. The first, the defense counsel's alleged closing argument, has already been considered. Second, appellants' appellate counsel, different from trial counsel, now contends that trial counsel failed to adequately prepare the case. Our review of the trial record shows that there is no merit in this contention. There has been no probable miscarriage of justice. The case was litigated on the basis of whether Gregory was crossing with or against the light. This was a jury question answered in favor of defendants and against Gregory.
By the Court.—Order affirmed.