| Wis. | Jun 21, 1890
This is an appeal from tbe judgment on a second trial of this action. On tbe first trial an appeal was
The first error assigned is the instructions of the court to the jury on the question of damages. The instruction objected to reads as follows: “ The amount of the damages which you wifi, assess is left to your judgment and discretion, considering the proper elements of damages, which are as follows: Adequate compensation for all of the physical and mental pain and suffering which the plaintiff suf- ■ fered at the time of the accident, which he has suffered since that time, and which he is reasonably certain to suffer in the future, by reason of his injuries; also for the mortification and anguish of mind which he has suffered, and will in the future suffer, by reason of the mutilation of his body and the fact that he may become an object of curiosity or ridicule among his fellows.” The learned counsel for the appellant take exceptions to the use of the words, “ for the mortification and anguish of mind which he has suffered, and will suffer in the future, by reason of the mutilation of his body and the fact that he may become an object of curiosity or ridicule among his fellows.”
The appellant also excepted to the refusal of the court to give the following instruction: “The engineer was not bound to stop his train or resort to unusual precautions the moment he saw the plaintiff, merely because he was approaching the track. It being broad daylight, and his engine plainly visible, and the beh ringing, he had the right to assume in the first instance that the plaintiff would stop in time to escape injury. He had the right to run on until he had evidence that the boy approaching the track was heedless of danger. When he had such notice, he was bound to use all reasonable care and diligence to avoid it.” Instead of giving this instruction, the learned judge instructed the jury as follows: “ The mere fact that the traveler is approaching the track is not, of itself alone, sufficient
The third exception is taken to the following testimony given by the witness Macloon. Macloon was examined as. to a conversation he had with the engineer, Roberts, shortly after the accident, and he testified, under objection, that Roberts in that conversation said: “ There is no use talking about six miles an hour. We couldn’t do the work if we ran only six miles an hour, and we have to run faster.” Roberts had been questioned as to this alleged statement, and he said he had no recollection of making such statement or of having any such conversation. Macloon was called on rebuttal, and asked about such conversation for the purpose of discrediting the evidence of Roberts as to the speed of the train. As this evidence was offered, not as original evidence for the plaintiff as to the speed of the train, but for the purpose of discrediting the evidence of Roberts on that question, we think it was properly admitted. It was substantially so determined on the former hearing in this case. See 14 Wis. 252" court="Wis." date_filed="1861-11-02" href="https://app.midpage.ai/document/smith-v-hoyt-6598507?utm_source=webapp" opinion_id="6598507">14 Wis. 252.
The fourth exception to the evidence offered by the plaintiff, showing that there was no sign-board at the cross
The fifth exception was to the introduction of the city-ordinance forbidding the blowing of the engine whistle “ within the city limits, except as a necessary signal or to prevent accidents.” We think therfe was no error in admitting this ordinance. It could not prejudice the defendant if the circumstances were such as did not render it necessary to blow the whistle to prevent an accident, and if, under all the circumstances, the jury should be of the opinion that the whistle should have been blown to prevent the accident, the ordinance did not forbid its being blown. As said in the former opinion, “ The ordinance clearly contemplated that the whistle might be sounded whenever it should become necessary as a signal or to prevent accidents.” We are unable to see how the admitting of this ordinance in evidence could have prejudiced the defendant.
The sixth exception is to a question asked of Elizabeth Spence, a witness for the plaintiff, who had testified that she had been in attendance upon the plaintiff for three or four weeks after he was injured. She said she “ was with him the first night after the injury. He suffered very much. He suffered very greatly, and I could see that in his expression how he suffered, and every now and then he would lose his consciousness.” Then the witness was asked this question: “To what extent, apparently?” To this question the defendant objected. The court overruled the objection, and the witness answered: “It was very bad. I can’t tell, for it was so bad.” Certainly, when this answer of the witness is considered in connection with the other evidence in the case as to what the plaintiff suffered from the accident, it is evident that it could not have prejudiced the defendant. We are of the opinion that this witness, from what she saw of the plaintiff and his condition for
The seventh error assigned was the overruling of an objection to the following question asked of the father of the plaintiff: “What was the boy’s temper'before he was injured? ” The answer was: “ He was of bright and cheerful temper., Now, he is very irritable, and if anything excites Mm he seems to be uncontrollable.” It would seem that the question was a very proper one, as showing that the boy’s mental condition was sound before the injury; and we are also of the opinion that the answer as to his mental condition after the injury, although not responsive to the question, was admissible. It would seem that, if an injury caused a permanent mental defect or disease, it would be equally as good ground for the recovery of damages as though a physical defect or disease was the result. But the question did not call for the' mental condition of the boy after the injury; and, if the defense objected to the witness stating what such condition was after his injury, he should have moved to strike out that part of the answer stating such condition. It was not called for by the question objected to, and the plaintiff is not responsible except for that part of the witness’ answer which is responsive to the question propounded. The ruling of the court that the question was admissible was not a ruling that .that part of the answer not responsive to the question was or was not admissible.
. After the testimony was closed the counsel for the plaintiff addressed the court as follows: “ Upon this trial what was problematical or theoretical is demonstrated; and the proof is here of the failure or decadence or stoppage, whatever view you take of it, of the mental faculties themselves.
The ninth error assigned is that the damages assessed are excessive. The counsel for the appellant has not urged this point upon the court in his oral argument. To the ordinary young man, $18,500 is a large sum of money; but we cannot say that it is too large a sum to make him compensation for an injury which has to a great extent destroyed his capacity to contend successfully with his fellows for those things which make life enjoyable and happy, and which has
The case seems to have been fairly tried upon the merits, and none of the exceptions taken seem to us of sufficient importance to justify a reversal of the judgment.
By the Oowi.— The judgment of the circuit court is affirmed.