Druska v. Western Wisconsin Telephone Co.

177 Wis. 621 | Wis. | 1922

Vinje, C. J.

The summons and complaint were served August 8, 1921, and the complaint alleged the accident occurred on the 26th day of August, 1921. On the trial the court allowed the complaint to be amended by alleging the 28th day of July, 1921, to be the time of the accident and by changing the place thereof from about 100 feet west of a designated point to about 300 feet west therefrom. The defendant assigns error because the court refused a continuance on account of the amendments. That a wrong' date was alleged was apparent. The trial began September 15, 1921. Before acting upon the motion for a continuance the court ascertained from defendant’s attorney, who was also president of the defendant, among other things, that immediately after the service of the summons and complaint he went to the precise pole in question and had a picture taken of it and knew from hearsay that the accident occurred July 28th, and could have learned it definitely by asking plaintiff, who lived near by; and he declined to state positively that he could not safely proceed to trial. Under such circumstances there was no abuse of discretion in refusing a continuance. Such an application is always addressed to the sound discretion of the trial court, and prejudice must be made to appear in order to set aside its ruling thereon. State ex rel. Hallam v. Lally, 134 Wis. 253, 114 N. W. 447.

A telephone pole located from eleven to twelve inches outside of a traveled track of a highway on an elevation of from six to eight inches above the traveled track and over four feet from the nearest limits of the highway may properly be found by a jury to interfere with the use of the highway by the public even though the traveled portion of the highway at that point was about fourteen feet wide. Carpenter v. Rolling, 107 Wis. 559, 83 N. W. 953; Neale v. State, 138 Wis. 484, 120 N. W. 345. It appears that through a slight inattention of the driver, caused either by the slipping of some dishes in the car or by his momentary attention to the plaintiff, the car suddenly swerved from the beaten track and came in contact with the pole. Under such circumstances the jury were warranted in finding that the location of the pole was the proximate cause of plaintiff’s injury. Any negligence on the part of the driver would not be a defense. Reiter v. Grober, 173 Wis. 493, 181 N. W. 739.

The jury awarded plaintiff $3,000. It is claimed, the damages are excessive. The evidence would sustain a finding that her injuries were as described by her counsel as follows:

“The plaintiff was a young and comely girl of nine years who, up to the time of the injury, had had uniformly good health. As a result of this injury she sustained a cut two inches in length and one and one-half inches deep, starting at the lower left side of the jaw and extending back to' the base of the ear. In addition she sustained other cuts.and bruises on her face, the one on her temple necessitating sewing and leaving a scar. The largest gash, under the chin, was hurriedly sewed by the doctor, as he believed the patient had already died from the loss of blood pouring out of that wound and he wanted it closed as soon as possible. The gash had not entered directly into the neck, but extended back toward the ear . with its deepest part under the ear. The cut had severed the external jugular vein and the muscles which move the head. The plaintiff lay for five days as though dead and then recovered slowly, till at the end of five weeks she was able to be out of bed. During that time she suffered acute pain and was unable to eat properly or move her head normally. At the time of the trial she still had an impediment in the movements of her head; there was a broad, bright red scar extending entirely along one side of her neck, the injury to the muscles had caused one side of her mouth to droop, and when talking she was compelled to talk from the side of her mouth, as the muscles did not open her lower jaw evenly. In the opinion of experts this condition of her neck, the scax*, the impediment in her speech, and the drooping condition of her mouth would be permanent.”

Such evidence, in our opinion, sustains the verdict as to damages.

By the Court. — Judgment affirmed.