186 Wis. 566 | Wis. | 1925
It is argued by counsel for the Cab Company that the proximate cause of the plaintiff’s injuries was the negligence of the defendant Leet; that the Cab Company’s driver had the right of way, was not bound to anticipate the danger, and that there was no credible evidence of the appellant’s negligence. In addition to the facts already stated
“The possession of this right does not of course justify the possessor in plunging ahead regardless of consequences nor in failure to exercise ordinary care to avoid injury to others, but the fact is an important one to be considered in deciding the question of negligence.” Glatz v. Kroeger Bros. Co. 168 Wis. 635, 170 N. W. 934.
There is an especial reason for applying this rule in the case before us. The defendant was a common carrier and the plaintiff was a passenger. “The duty imposed upon a common carrier to provide for the safety of passengers is to exercise the highest degree of care reasonably to be ex-
It was stipulated at the trial that the block from Downer avenue west was 300 feet long and that there was but one building on the south of that block. There was also but one building on the north side, which was the normal school. The statutes, sub. 1, sec. 1636 — 49, in force at the time of the collision, among other things provide that:
“No person shall operate or drive any automobile ... at a rate of speed greater than is reasonable and proper, having regard to the width, traffic and use of the highways and the general and usual rules of the road, or so as to endanger the property, life or limb of any person, and no person shall operate or drive any automobile, motorcycle or other similar motor vehicle, along any public highway, within the corporate limits of any city or -village, or through any unincorporated settlement containing more than ten houses or places of business, at a speed exceeding fifteen miles per hour, except where the houses or business places, or both, shall average more than two hundred feet apart, where a safe speed not exceeding twenty miles an hour may be itsed.”
On the cross-examination of the cab driver he was asked if his compensation was on a commission basis and he answered that it was. Doubtless this testimony was drawn out for the purpose of leaving an inference that he had a motive for driving rapidly and thus earning as much as possible. To rebut this testimony counsel for the defendant Cab Company offered testimony to prove that the driver would lose a bonus in case of an accident. Both kinds of testimony had only a remote bearing on the real issue and yet it cannot be said that either was wholly irrelevant. The testimony admitted tended to show a motive for fast driving; that re
Counsel for the defendant excepted to the following remark made by one of the attorneys for the plaintiff during the argument to the jury:
■“There should not be any dispute between both of the defendants with respect to the amount of recovery by this plaintiff, if plaintiff makes a recovery in this case against both defendants in this case, both defendants are equally liable, to both defendants.”
In their brief counsel for the plaintiff argue that this language was “nonsense.” With this we-are inclined to agree. At least its meaning is unintelligible to us, and we are not disposed to hold that the jury were better able than we are to understand it. Since the meaning of the remark was probably beyond the comprehension of the jury we do not think they were seriously misled by it.
Another exception was to the following language used in the argument:
“The inference I want to draw from the witness is this: that a person who will so conduct himself as the evidence shows, will be as calm and unperturbed as Burton was on the witness stand before you, not a twitch of a muscle, perfectly self-possessed, without the intervention of anything*573 to disturb his calmness, characterizes the man. . . . That calmness, that freedom from any sense of blame, .is shocking, in view of the injury and the suffering and the broken body, and invites, if it does not compel, comment upon the lack of credibility.”
This language was used with reference to the conduct of the witness on the stand and in gathering the names of witnesses to the accident while 'the plaintiff was lying unconscious ■ on the ground. There was no vagueness in this language or uncertainty as to its meaning and it was a severe criticism of the conduct of the witness. But we cannot say that it was entirely unwarranted. The trial judge held that the remarks were not prejudicial, and we do not reverse his decision.
Although the defendant Leet did not appeal, he asks for a review on the question of damages, and counsel for both defendants argue that they were excessive. As a result of the accident the plaintiff was thrown from the cab to the pavement and suffered a compound fracture of the pelvic bone and a broken jaw, with minor cuts and bruises about the head and body. After six weeks the plaintiff was taken from the hospital to her home, though it was some time before she was able to walk. The fractures of the pelvic bone healed satisfactorily, but the broken jaw and cheek bone affected the nerves of the face so that she has suffered from pain almost continually since the accident. Three doctors testified that ordinarily such a condition was not permanent, but that in view of the fact that this condition had lasted two years it was probable that it was permanent. At the time of the trial there was a depression over the right side of the face in the neighborhood of the right cheek bone. The plaintiff had what was called hyperesthesia over the entire body, meaning a sort of increased sensation. According to expert testimony she was suffering from neurasthenia. She was unable to attend to her domestic duties and had become irritable to the members of her family. It was conceded that
By the Court. — Judgment affirmed.