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07/26/83 SHAWN MILLER v. TOWER INSURANCE COMPANY

July 26, 1983

SHAWN MILLER, JOHN N. MILLER, AND CAROL MILLER, PLAINTIFFS-APPELLANTS,
v.
TOWER INSURANCE COMPANY, INC., A DOMESTIC INSURANCE CORPORATION; THE CONTINENTAL INSURANCE COMPANY, A FOREIGN INSURANCE CORPORATION; CARL A. PETERS; PATRICIA PETERS; AND ANTHONY M. FOX, DEFENDANTS-RESPONDENTS.



APPEAL from a judgment of the circuit court for Bayfield county: THOMAS J. GALLAGHER, Judge. Affirmed.

Petition to Review Denied September 13, 1983

Before Foley, P.j., Dean and Cane, JJ.

PER CURIAM. Shawn, John, and Carol Miller appeal a judgment for Carl and Patricia Peters, Anthony Fox, and their insurers. Shawn was injured when he was kicked by the Peters' horse, which the Peters kept on Fox's property. The jury found that Shawn was 100 percent causally negligent and that the Peters and Fox were not negligent. Because we conclude that these jury findings are supported by credible evidence and that no trial court error requires a new trial, we affirm the judgment.

One who fails to exercise reasonable care under the circumstances is negligent. Walker v. Bignell, 100 Wis. 2d 256, 264, 301 N.W.2d 447, 452 (1981). This court will uphold a jury verdict if there is credible evidence to support it. See Chart v. General Motors Corp., 80 Wis. 2d 91, 106, 258 N.W.2d 680, 686 (1977). We search the record for credible evidence to sustain the verdict, not for evidence to sustain a verdict the jury could have but did not reach. See Coryell v. Conn, 88 Wis. 2d 310, 317-18, 276 N.W.2d 723, 727 (1979). The credibility of the witnesses and the weight to be given to their testimony is left to the jury's judgment, and we must accept the inference drawn by the jury if more than one reasonable inference may be drawn from the evidence. See Meurer v. ITT General Controls, 90 Wis. 2d 438, 450, 280 N.W.2d 156, 162 (1979).

Based on the evidence, the jury could reasonably find that Shawn was 100 percent causally negligent. They were entitled to find that the gelding's earlier nip of Mrs. Peters did not indicate viciousness and that the Peters and Fox had no reason to suspect or to warn others that the gelding was dangerous. They were also entitled to find that Shawn failed to exercise ordinary care when he approached the gelding at an angle from the rear at dusk when he could have avoided the horse altogether.

The trial court properly determined that the stallion did not kick Shawn and correctly refused to submit this issue to the jury. An issue should not be submitted to the jury where reasonable minds can reach but one Conclusion. Nolden v. Mutual Benefit Lite Insurance Co., 80 Wis. 2d 353, 359, 259 N.W.2d 75, 78 (1977). Only inadmissible, hearsay evidence identified the stallion as the horse that kicked Shawn. This does not defeat competent identification of the gelding as the offending horse. No reasonable juror could conclude that the stallion kicked Shawn where the only admissible evidence indicated that the gelding kicked him.

A new trial is not necessary because of the remaining alleged trial court errors. We will not reverse a judgment unless an error affects the substantial rights of a party. Sec. 805.18(2), Stats. Evidence that the gelding had a gentle Disposition was relevant to the respondents' knowledge of its Disposition and their negligence. Respondents' six peremptory jury challenges, juror note taking, and the appellants' inability to cross-examine Sally Fox were not prejudicial. There was no error in giving Wis. JI--Civil 220 (1981) because it correctly stated that jurors may not speculate on the evidence. Smee v. Checker Cab Co., 1 Wis. 2d 202, 204, 83 N.W.2d 492, 494 (1957). Finally, we need not review any error in the direct and cross-examination of Dr. Johnson, the mitigation of damage instruction, or the damages because we uphold the findings on negligence.

By the Court. --Judgment affirmed.

Not recommended for inclusion in the official reports.

19830726

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