169 Wis. 152 | Wis. | 1919
The following opinion was filed March 4, 1919:
The defendant operates an electric interurban railway between Milwaukee and Sheboygan, and one of the stations on its line is Port Washington. Between Milwau
Among the plants “inspected” at Port Washington were certain breweries, at which the crowd was cordially and hospitably received and entertained. These plants also proved of interest to the conductor and motorman, who joined the “inspection party” while at these plants. When it came time to start on their return trip some difficulty was experienced
The negligence of the motorman was conceded. The defendant resists liability solely on the ground that the plaintiff was guilty of negligence as a matter of law in occupying the cab, and upon the authority of cases in some jurisdictions which hold that a person who is injured while riding on an open platform of an ordinary passenger car on a steam railway, there being seating, or, in some .cases, standing, room inside the car, is guilty of negligence as a matter of law. This rule, it is claimed, was adopted and applied by this court in the case of Miller v. Chicago, St. P., M. & O. R. Co. 135 Wis. 247, 115 N. W. 794. We think that a careful perusal of that case will disclose that it was there held as a fact, and not as a matter of law, that plaintiff’s deceased was guilty of contributory negligence. However, we will not discuss that case further than to suggest that it is doubtful whether it sustains the principle contended for by the defendant. The situation of the plaintiff here and of the deceased there is comparable to the extent that both were passengers on a common carrier conveyance, but there the similarity ends. We can see no similarity whatever between the risk assumed by the plaintiff in this case and the deceased in that. There the
The dangers to which plaintiff exposed himself were not as great nor ás obvious and apparent as were the dangers to which plaintiff’s deceased was exposed in Engen v. Chippewa Valley R., L. & P. Co. 162 Wis. 515, 156 N. W. 460, where it was held that the question of deceased’s contributory negligence in standing in the vestibule in the rear end of the car, in a space twenty-four by twenty-seven inches, very close to the edge of the platform next to the open door, where even a moderate swaying of the car in turning the curve might cause him to lose his balance and have a tendency to throw him off, was a jury question. Unless it can be said that plaintiff’s “contributory negligence is so clear and decisive as to leave no room for unbiased and impartial minds to come to any other conclusion, or, as it is sometimes said, so clear and conclusive as not to admit, reasonably, of any opposing inference in unbiased and unprejudiced minds, the proper infer
Appellant complains because it was not permitted to prove a rule of the company excluding passengers from the cab. The proffered evidence was not accompanied by an offer to prove that plaintiff had knowledge of the rule, nor was it suggested that the rule was adopted by the company out of consideration for the safety of passengers. Unless the purpose of this rule was to promote the safety of passengers, and its existence brought to the knowledge of the plaintiff, it was not admissible. The exclusion of this evidence was not error.
The defendant excepted to the following extract from the court’s charge to the jury:
“You are instructed that you will name such sum as you find from a preponderance of all the credible evidence in the case, to a reasonable certainty, will be required to fairly and reasonably compensate the plaintiff in money for such loss of earnings and such pain and suffering, both mental and physical, as you are satisfied is chargeable to the injury, and also for such loss of earnings, if any, and the impairment, if any, of capacity to earn a livelihood in the future, as it is reasonably certain will result from the injury, and such pain and suffering, both mental and physical, if any, as it is reasonably certain he will suffer in the future.”
It is contended that that part of the charge reading, “and such pain and suffering, both mental and physical, if any, as it is reasonably certain he will suffer in the future,” is erroneous, in that future pain and suffering, both mental and physical, is not limited to such as it is reasonably certain would result from the injury. We do not think the jury
Upon this question appellant relies upon Howard v. Beldenville L. Co. 129 Wis. 98, 108 N. W. 48. In the opinion in that case it is said :
“This instruction was given to the jury on the subject of damages: ‘You will. . . assess all such sums as you are satisfied from evidence will recompense him for all future suffering, both mental and physical.’ That was prejudicially erroneous. The jury should have been limited in assessing damages for future suffering, mental and physical, to such loss, in that regard, as the evidence satisfied them would be reasonably certain to result from the injury.”
That was a correct statement of the law, and so much of the charge as is quoted in the opinion was subject to the condemnation there pronounced. Appellant, however, has employed the deadly parallel and set out in his brief all of the charge in Howard v. Beldenville L. Co., supra, bearing upon the question, in which the language condemned in that case appears in one column and the charge of the court herein in another. In reading the full expression of the trial court upon the question in the Beldenville Case it must be agreed
Appellant also complains because the court instructed the jury that in awarding plaintiff damages they were to take into consideration “the extent, if any, to which it [the injury] had affected his ability to engage in pastimes.” It is conceded by appellant that plaintiff in a personal injury action may be awarded damages because of “diminished capacity for enjoying life,” or, as approved in Benson v. Superior Mfg. Co. 147 Wis. 20, 132 N. W. 633, because of “deprivations of the pleasures of life.” Having conceded that damages because of “diminished capacity for enjoying life” is proper, we do not appreciate the force of the contention that in awarding damages the jury may not take into consideration “the extent, if any, to which it [the injury] had affected his ability to engage in pastimes.” “Diminished capacity for enjoying life” is more comprehensive than “ability to engage in pastimes.” Plainly the former includes the latter and more. The defendant was not injured by the use of the language employed.
The jury fixed plaintiff’s damages at $20,000, which was reduced by the court to $16,000. Appellant insists that the damages are still excessive. As a result of the accident plaintiff was rendered unconscious. His left leg was crushed. The thumb on his left hand was crushed. He sustained a
Appellant preserved exceptions to the introduction of some evidence which we shall not treat in detail for the reason that, in our view of the case, they have but an academic interest here. Such evidence had a bearing solely on the amount of damages. A good deal of- it consisted of expert testimony concerning matters of more or less general knowledge, and its influence upon the verdict of the jury could not have been substantial. If any error occurred in its admission it was more than offset by the reduction of the damages from $20,000 to $16,000. Bakula v. Schwab, 167 Wis. 546, 168 N. W. 378. We cannot reverse the judgment for this error because, as above stated, we feel that substantial justice has been done and the rights of appellant were not prejudicially affected by the admission of the evidence. Sec. 3072m, Stats.
By the Court. — Judgment affirmed.
A motion for a rehearing was denied, with $25 costs, on April 29, 1919.