Braun v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.

170 Wis. 10 | Wis. | 1919

The following opinion was filed May 27, 1919:

Eschweiler,-J.

Plaintiff’s main contention on this appeal is that the damages awarded by the jury were inadequate and that such result should be set aside and a new trial had for the reasons (1) that the form of the question in the special verdict as to the damages was wrong; (2) that the court erred in its instructions upon the subject of damages; (3) that the court erred in excluding evidence offered by plaintiff, or in admitting evidence offered by defendant on the subject of damages; (4) because a new trial should be had on the ground that such award of damages was grossly inadequate, contrary to the overwhelming evidence and the law, or as an improper exercise of their duty by the jury.

The plaintiff requested the submission of the following question:

“5. In the event that the plaintiff should be entitled to recover, at what sum should his damages be assessed ?”

The court refused to submit such questidn and did submit the following:

“5. What sum would reasonably compensate the plaintiff for his loss and injury which was directly produced by the derailment of train in question?”

This was answered by the jury at $2,500. In instructing the jury upon this question the court said as follows;

1‘. . . You are simply to say what the plaintiff’s direct loss and injury amounts to when measured in money. In arriving at the amount of such loss and injury the jury shpuld bear in mind that you are to include only such loss and injury as were the direct results of the derailment in question. With that limitation in mind you should, in answer to this question, name such sum as you find from the preponderance of the evidence, to a reasonable certainty, would be required to fairly compensate the plaintiff in money for, first, such loss of time and earnings already suffered and such as he is reasonably certain to suffer in the future, and for, second, such pain and suffering as he has already endured and such as he is reasonably certain to endure in the future, and for, third, such reasonable expenses for medical and surgical care, treatment, and nursing as he has in good faith incurred and will incur in the future in reasonable good-faith efforts to cure himself from the injuries received by him, all as the direct result of the derailment of- the train in question. You should not include any other element.

“You should, of course, exclude from your consideration all loss and injury sustained by the plaintiff as the result of any other injury than the one received at the time of the derailment in question, and all loss and injury resulting from disease wholly disconnected from the injury received at the time of the derailment in question. . . .

“(5) There is no mathematical rule by which you can compute with certainty the exact amount of plaintiff’s loss, but you are to take into consideration all of the facts and circumstances shown from the evidence, and therefrom, in the exercise of your soundest judgment, fix upon such sum as you believe would be fair compensation, in money, for the loss and injury sustained by the plaintiff as the direct result of his injury received at the time of the derailment.”

At another portion of the charge stating the issues, the court said that it would become the duty of the jury to determine the question of what consequences of loss and damage to plaintiff had directly resulted from the derailment in question.

We think there is proper foundation for the criticism made by the plaintiff of the repeated use of the word “direct” as it appears in the charge before us.

In a number of cases this court has held that in charging the jury as to their duty in determining whether or not injuries sustained were, under the law, to be attributable to the negligence of a defendant, the words “direct” and “proximate” do not have the same meaning and are not interchangeable terms. Wills v. Ashland L., P. & St. R. Co. 108 Wis. 255, 261, 84 N. W. 998; Mauch v. Hartford, 112 Wis. 40, 58, 87 N. W. 816; Wheeler v. Milner, 137 Wis. 26, 28, 118 N. W. 187; Ward v. C., M. & St. P. R. Co. 102 Wis. 215, 220, 78 N. W. 442.

While that distinction was made in cases where the question to be determined was whether the injuries were the proximate result of defendant’s negligence, rather than as in the case before us where the question is whether the particular damages complained of were the result of the injuries suffered by reason of the negligence of the defendant, being one step beyond the situation presented in these cases, yet where the two questions are, from their nature, so closely associated, it is the safer course to recognize this distinction for each' as well as for the one. The trial court in his decision on this point suggests that the word ‘-direct,” as used by him in the charge and in the fifth question of the special verdict, would not, in its ordinary acceptation, restrict the jury’s consideration to damages which developed on the very day of the injury; yet just such suggestion would be as appropriate to the charges condemned in the above cited cases as herein. Therefore the form suggested by the plaintiff, for the fifth question in the special verdict, being the usual one and not subject to the objection here discussed, should have been given rather than the form adopted by the trial court.

The court charged the jury in substance that there were three elements of damages for them to consider: First, loss of time and earnings already suffered and such as he is reasonably certain to suffer in the future; second, such pain and suffering as he has already endured and such as he is reasonably certain to endure in the future; and third, such reasonable expenses for medical and surgical care, treatment, and nursing as he has in good faith incurred and will incur in the future in reasonable good-faith efforts to cure himself from the injuries received by him — all as the direct result of the derailment of the train in question; then adding, “You should not include any other element.”

There was omitted from this enumeration of the various elements of damages for their consideration such elements as may, under proper facts, be considered by a jury in such class of cases, namely, loss of the capacity to enjoy life,» or any diminution of such capacity; any elements of impairment of plaintiff’s memory; reduction of his intellectual capacity; diminution of his mental vigor, and any loss of sexual power.

No request on behalf of the plaintiff was made that the court should charge the jury as to any of these last enumerated elements, and in default of such request so to charge we could not say that the general language used by the court in its charge would have been reversible error on account of such omission except for the use of the clause, “You should not include any other element.” This phrase must be considered as in effect withdrawing from the consideration of the jury any other elements of damage than those specifically mentioned by the court and would therefore naturally exclude from their consideration the elements for the omission of which the plaintiff now complains. This made the charge erroneous. This is especially so ■ in the view taken by the trial court in his opinion in passing upon the plaintiff’s motions where he states that, if the plaintiff suffered all the effects which he claimed to have suffered from the derailment, then the damages awarded are entirely inadequate, and if such consequences were established to be the direct and natural consequences of such an injury it could not be compensated by the allowance of $2,500.

We have examined the other assignments of error made by plaintiff as to the trial court’s rulings on the admission or exclusion of evidence and find no material or prejudicial error therein.

For the errors in the submission of this case to the jury by the form of the fifth question of the special verdict and the improper limitation placed upon the subject and possible amount of the damages which the jury might consider under the charge, it would be incumbent upon us to remand this case for a new trial except for the positive direction placed upon,us by the legislative will as expressed in secs. 2829 and 3072m, Stats. These have been discussed and the effect to be given to them considered and determined in a number of decisions. Oborn v. State, 143 Wis. 249, 126 N. W. 737; Koepp v. Nat. E. & S. Co. 151 Wis. 302, 306, 139 N. W. 179; Wiese v. Riley, 146 Wis. 640, 644, 132 N. W. 604; Rodermund v. State, 167 Wis. 577, 584, 168 N. W. 390.

These statutes require us now to examine the record on the points involved and refuse to grant a new trial unless from such examination this court is convinced that, if the errors found in •the record had not occurred, a more favorable result for appellant might probably have resulted. Such examination of the record does not so satisfy us.

Unless at the time of the derailment of the train the plaintiff did receive an injury to his head whereby some resultant damage was done to the inner right ear, then many of the elements of damage relied upon by plaintiff in his claim that the award of the jury of $2,500 was inadequate have no support in this case. He and members of his family testified to the effect that there was a discoloration of the side of the face and near the eye the day after the accident and for some time thereafter, and he testifies to having had hemorrhages shortly after the accident and at intervals for some time thereafter, and to being nauseated and vomiting blood within an hour or two of the accident. But the significant features of the case with reference to that situation are these: that neither at the time of the accident nor on the trip to Rhinelander after the derailment, nor while under the observation of his own physician and other physicians at Rhinelander during a period of several hours, does it appear that he mentioned to any one that there had been an injury to the head or ear or.that he had bled or been nauseated. None of these physicians at Rhinelander observed anything that indicated an injury to the head.

This conclusion we are compelled to arrive at from the consideration of the entire record, requires an affirmance of the result in the trial court.

By the Court. — Judgment affirmed.

A motion for a rehearing was denied, with $25 costs, on November 4, 1919.