The appellant’s contentions are (1) that the verdict should have been directed for the defendant; (2) that the court erred in its charge upon the subject of damages; (3) that the damages are excessive.
1. It is argued that the plaintiff’s claim that the car had stopped before’she attempted to alight, and started again suddenly while she was stepping to the ground, is utterly at variance with all the reasonable probabilities, and against the overwhelming preponderance of the evidence, and that, therefore, a verdict for the defendant should have been directed. Upon this contention reliance is placed upon the case of McCoy v. Milwaukee St. R. Co. 82 Wis. 215. It is not to be denied that the plaintiff’s story was directly contradicted by a number of disinterested witnesses, as well as by the employees of the defendant, and that her version of the matter stands alone, except for the support given it by the somewhat vague and uncertain statements of Mrs. Adel-berg; yet we do not feel prepared to say that the story was-so improbable and incredible, and so completely overcome by the testimony of the other witnesses, that a verdict based thereon cannot be supported. The plaintiff was an old lady of character and standing. Her story was not intrinsically' improbable. The accident might w-ell have happened just as. she described it. The trial judge had the advantage of seeing her upon the stand, as well as the adverse witnesses-, and
2. Upon the subject of damages, the court charged the jury as follows: “ If you have occasion to find the plaintiff’s damages, which would be only in the case she was not negligent while the oar was in motion, you will assess reasonable compensation for the pain and suffering she endured, and for her loss of ability to proceed with her regular employment, but nothing for her time; because the time, if any, which she lost, she being a married woman, is the proper damage of her husband. So you will give her nothing on account of her loss of time. You will give her such damages as she is entitled to, if you find she is permanently injured. If you find the injury still continues, and will continue, you will give - her such damages as you think proper for the pain and suffering which she must still endure, — ■ the pain and suffering resulting from such injury. , . . Upon the subject of damages, I have already stated that the plaintiff is entitled to damages, not for her loss of time, but for her loss of strength and general ability to pursue her regular mo-
To the last of this instruction the defendant excepted because the plaintiff’s regular avocation was shown to be that of housekeeper for husband, and because the instruction gave the jury to understand that there might be a recovery for the loss of such services, which could only be recovered in an action by the husband. There is certainly ground for criticism of this clause of the charge in the respect named. But we think, in view of the care with which the court twice charged the jury that there could be no recovery for her time lost, because this belonged to her husband, that the jury could not have been misled. The plaintiff was entitled to recover for her loss of physical strength, and it seems to us that the jury must have understood that it was this element which the court was referring to in his charge, and not her loss of time. While the charge was inaccurate, we cannot consider it as prejudicially erroneous, in connection with the specific direction, given in the same breath, that she could not recover for loss of time.
8. We cannot set aside the verdict as excessive, in view of the evidence. There was much evidence of physical suffering, and it seems quite conclusive that the injuries are permanent, and will entail suffering in the future. These elements of damages are peculiarly within the province of the jury to measure.
By the Court.— Judgment affirmed.