136 Wis. 637 | Wis. | 1908
Lead Opinion
1. Tbe appellant urges that the hypothetical questions propounded to four doctors respecting the-cause of plaintiff’s present condition of health and the progressive character and permanency of his illness, besides assuming certain specific facts, embraced an assumption that, the plaintiff’s evidence as to his height, weight, nervous condition, pain, the suffering endured by him up to the time of the trial, and his ability and inability to work was true. Erom an examination of the record it appears that the evidence of the plaintiff was conflicting and contradictory upon-the subjects covered by the hypothetical questions as to his-nervous condition, the amount of pain and suffering he had' endured, and his ability to work. In some of the questions the truth of like evidence of the father of plaintiff and of" the evidence of Drs. Sazarin and Adams bearing on his condition and health was assumed. The doctors to whom these-questions were propounded had attended the trial and heard the evidence of plaintiff, his father, and the doctors upon the-subjects included in the hypothetical questions. The evidence on these subjects is so complicated and voluminous that a difference in understanding the material facts is so probable as to raise doubts as to what facts were considered as true-when these experts gave their opinions. These conditions-render it well-nigh impossible to ascertain upon what facts the experts based their opinions. Such a state of the case-renders the opinions given uncertain and unreliable, and likely resulted to the great prejudice of the party against whom it operated. As was declared in Bennett v. State, 57 Wis. 69, 14 N. W. 912: “The jury should in every case distinctly understand what are the exact facts upon which the-expert bases his opinion.” This and other cases in this-court clearly point out the necessity of stating the facts in the-hypothesis in this class of cases, and show that a failure so to do is prejudicial. Cornell v. State, 104 Wis. 527, 80 N. W. 745, and cases there collected.
3. Upon the issue of whether or not the plaintiff at the time of accident was riding in the elevator for pastime or amusement, or for the purpose of going to Dr. Thompson’s office to ascertain if the doctor had any work for him, the court submitted the following question: “Was the plaintiff at the time of the accident on his way to Dr. Thompson’s office to visit the doctor ?” The court refused to submit the fol
4. Exception is taken to the instruction defining the degree of care imposed on defendant to keep the elevator in an ordinarily safe condition for carrying passengers. The court instructed the jury:
“By the ‘highest practicable degree’ of care is meant such care as. a very prudent and skilful man would ordinarily use in a similar case under the same or similar circumstances.”
On the former appeal of the case (132 Wis. 478, 490, 110 N. W. 399) the court referred to the case of Oberndorfer v. Pabst, 100 Wis. 505, 76 N. W. 338, as declaring that:
*643 “It is tbe duty of tbe proprietor of au office building to see tbat tbe passenger elevators operated by bim therein are' properly and safely constructed, and tbat they are operated with tbe highest degree of shill and care commensurate with or proportionate to tbe possibility of injury to passengers using them.”
It is also stated in the opinion on tbe former appeal in this case tbat tbe standard of care respecting safety in tbe operation of passenger elevators is tbe same as tbat exacted of passenger carriers by railroad. As to tbe, standard of care demanded of tbe latter, tbe following taken from Eetter on Carriers was approved as expressing tbe rule on tbe subject:
“For the safety of their passengers, common carriers are required to exercise tbe highest degree of care reasonably to be expected from human vigilance and foresight, in view of tbe mode and character of tbe conveyance adopted and consistent with tbe practical prosecution of their business.” 1 Fetter, Carriers, § 8.
Expressing tbe elements of this rule in other terms, it imposes on carriers of passengers tbe highest degree of care tbat men of reasonable vigilance and foresight ordinarily exercise in tbe practical conduct of such business under tbe same or similar circumstances. Tbe instruction given by tbe court imposes as tbe standard of care that which is ordinarily exercised by tbe very prudent and skilful man. Tbe instruction embraces tbe elements of similar circumstances and usual conduct of a class of men, but imposes tbe standard of care which is exercised by the very prudent and skilful class of men instead of tbe ordinarily prudent and skilful class of men. This exacts a higher degree of care of defendant in operating this elevator than tbe law imposes. Reliance is placed on tbe language used in Warner v. Chippewa Valley E. R. Co. 108 Wis. 319, 84 N. W. 423, wherein tbe special verdict and tbe charge are criticised as imposing a wrong standard of care on carriers of passengers. It is urged tbat tbe charge and special verdict in tbe instant case
The i*espondent contends that this erroneous instruction was not prejudicial because the court should have held as matter of law that defendant was negligent as found by the jury. We cannot approve this contention under the facts and circumstances of tire case, nor do we find justification in the record for defendant’s claim that there is no credible evidence showing negligence. The facts and circumstances material to this question are such that the jury might well have drawn different inferences respecting defendant’s cai*e in keeping the elevator in an ordinarily safe condition for carrying passengers, aixd the question was properly submitted to the jury for determination. Ferguson v. Truax, 132 Wis. 478, 488, 110 N. W. 395, 111 N. W. 657, 112 N. W. 513.
5. Appellant contends that the verdict covering the litigated questions whether or not plaintiff at the time of accident was on his way to visit Dr. Thompson at his office, and whether, or not he had prior thereto been forbidden by de>-fendant’s agents to ride in the elevator, is not supported by the evidence. It is conceded that plaintiff testified to facts tending to support these findings, but his testimony upon the different trials and the preliminary examination is vigorously assailed as of no weight and credibility because of its many contradictions and conflicts upon many material phases of the case. We need not specify these alleged conflicts and contradictions. It is manifest that they exist. The appellant’s contention is, in substance, that plaintiff’s evidence is
6. Complaint is made on account of remarks made by plaintiff’s counsel to the jury to the effect that Dr. Thompson had been induced to testify falsely in consideration of money paid him by the defendant, and another statement by counsel that Dr. Sazarin had testified that plaintiff’s hands were not burned by contact with the elevator hand cable when the elevator fell. The facts of the case furnish no justification for such remarks. These, as well as other remarks which the trial court condemned in its ruling, show that counsel transgressed the proper limits in presenting the case to the jury. In the very nature of the case they would tend to inflame the minds of the jury and tend to arouse them to action controlled by prejudice, to the injury of the defendant.
Upon consideration of the foregoing assignments of error it necessarily follows that the verdict and judgment cannot
By the Court. — The judgment is reversed, and the cause remanded for a new trial.
The following statement was added to the opinion December 4, 1908:
In view of the fact that it was necessary to order a new trial of the case for errors committed' on the trial, this court deemed it advisable not to consider the question of whether or not the amount of damages found by the jury was excessive, and therefore that question was not decided, though an exception thereto was presented and fully argued on, this appeal"'of the case.
Concurrence Opinion
(concurring). This case has now passed in review twice before this court. It has been pending a long time. In the very nature of things the litigation will be extremely burdefisome to both sides before the rights of the parties can be finally established; Eor that reason it seems to the writer, every question now before us which will be material upon another trial should be met, to the end that, so far as possible, the way may be cleared for a final determination of the controversy.
Upon the first appeal the finding in favor of plaintiff of $8,000 was challenged as excessive. That challenge was not resolved in plaintiff’s favor without considerable difficulty. Enough was said in the opinion to indicate that the amount was well up to the limit of what could receive judicial approval. It could not have been justified except upon the theory that plaintiff, as the jury were permitted to find from the evidence, was permanently and well-nigh completely disabled. Pacing that situation the court remarked that while the recovery was not so clearly excessive as to require con
It is not infrequent that upon a judgment, in a case of this sort, for damages well-nigh great enough to shock the sense of what is just, being reversed and a new trial had with substantially the same evidence, the amount is greatly increased the circumstances strongly suggesting a penalizing of defendant for vindicating his right to the reversal, leading necessarily to an imposition upon plaintiff of an additional burden as • a consequence of the vindication to establish his rights, which burden could not legitimately be cast upon the defendant to any greater extent than the taxable costs of the additional proceedings.
It is most unfortunate that under our system for remedying wrongs of the nature of the one in question the realizable indemnity to the injured party is often small as compared with the amount which the defendant is compelled to pay, but the defect in the system is not one attributable to defend
The court at this time has seen fit not to deal at all with the question of whether the verdict is excessive or not, though it is raised and has been fully argued. In the light of the result on the first appeal it is the law of the case, as I view it, that a recovery of $8,000 on a case such as that made on such appeal “is very large.” I take that as meaning, substantially, that such amount would be up to the limit of what could be justified. So it seems to me that it would be well to lay down upon this appeal, as has been done on other occasions, to the end that justice may be attained as speedily as possible and with as little burden to the parties as practicable, that if plaintiff recovers upon evidence substantially the same as has been twice produced, damages in excess of $8,000 cannot be approved.