Kinziger v. Chicago & Northwestern Railway Co.

156 Wis. 497 | Wis. | 1914

Lead Opinion

BaeNes, J.

It has been thought advisable to set out a fairly full synopsis of tbe leading facts in tbe case in order to get an intelligent understanding of tbe contentions made by appellant’s counsel. He urges (1) that causes adequate to produce a floating kidney were shown to exist before tbe accident; (2) that tbe symptoms were tbe same before and after tbe accident; and (3) that tbe direct medical proof was to tbe effect that tbe floating kidney was of long standing when tbe February, 1912, operation was performed.

An extended discussion of tbe evidence would serve no useful purpose. It must we think be conceded that causes adequate to produce a floating kidney were shown to exist prior to tbe accident. Tbe symptoms before tbe 1906 operation and after tbe accident were tbe same except that tbe pain was much more severe after tbe accident than it bad been at any time before, and tbe evidence tended to show that there was no excessive voidance of urine prior to the injury in 1910. It is not seriously disputed that plaintiff suffered little if any pain in her side after the 1906 operation until she was injured. She testifies that her general health was good, and in this she is corroborated by her mother. It is true, her physician, Dr. Gaunt, testified that he treated her from the time of the second operation until after the injury. The evidence does not show how frequently he treated her or for what trouble, except he says he did not treat her for a pain in the side. During this interval she gave birth to a child and had a miscarriage. So it is apparent that she had need of a physician for ailments other than that of floating kidney. We have then a situation where sufficient causes to produce a floating kidney existed as early as 1905 and symptoms which, in view of the subsequent history of the case, strongly indicated that such was the trouble. But we also have a situation where the jury might well have found that for more than four years after the fruitless operation of 1906 the earlier symptoms had entirely disappeared and the plaintiff was in good health. Then came the fall adequate to produce the result found and the subsequent intense pain and suffering which induced the plaintiff to undergo three very serious surgical operations within a period of six months. The medical testimony leaves us entirely in the dark as to whether a kidney once displaced will return to its normal place without an operation. There is some testimony tending to show that, where there is a dislocation, conditions may be greatly aggravated by a blow on the back. It would appear to be reasonable enough to the layman that a fall such as plaintiff sustained would be very liable to seriously aggravate the condition of the kidney if it was not in a normal condition at the time. If the injury was sufficient, as the doctors testified, to dislocate a normal kidney, it might well produce serious consequences in an abnormal one. We conclude that there was a sufficient basis in the evidence for awarding substantial damages to the plaintiff and that the judgment entered cannot be held to give an excessive amount. The testimony of Dr. Minahan as to the long-standing character of the trouble cannot be considered controlling. It is of course a mere expression of opinion. His evidence showed that he observed the kidney through the peritoneum when Dr. Connell performed his operation, and no explanation is offered as to how it was possible to tell that the trouble was of more than eighteen months’ standing. Dr. Murphy, who sewed the kidney in place and who had a better opportunity to observe it than any one else, testified that the fall in 1910 was sufficient to produce the result which he found.

The evidence was sufficient to warrant the jury in finding 'that the train was brought to a standstill in a negligent manner. There was evidence strongly tending to show that the bump was an unusually hard one. Besides, there is one very persuasive item of evidence in the case. No one knew better than the conductor whether the stop was of the usual kind or whether it was unnecessarily violent. lie was in the caboose when the stop was made and was thrown from his chair by it. The plaintiff testified to what he said in reference to the stop. The statement was more emphatic than elegant and need not be repeated. It clearly indicated that the conductor thought the jar caused by the stop was neither usual nor necessary and that the engineer was not properly doing his work. The conductor does not deny making the statement, although he said he did not remember of having made it.

By the Court. — Judgment affirmed.

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Dissenting Opinion

The following opinion was filed March 23, 1914-:

Maesiiall, J.

(dissenting). I think the evidence shows, very clearly, that respondent was a sufferer from floating kidney years before the accident. She had been twice operated upon without discovering her difficulty. Sbe had substantially the same symptoms before the accident as after-wards ; not so pronounced, perhaps, but sufficiently significant to move eminent advisers and operators to explore the cavity of the body in front and below the location of the kidneys for some physical infirmity requiring a replacement. The only positive expert evidence in the case given on the precise basis for opinion evidence confirms all direct evidence on this point. I think, from the record, there is not much, if any, doubt but that respondent’s injury caused by the fall from the seat consisted of an increase of an old difficulty.

In the circumstances stated, what is the duty of this court ? Is it to allow the verdict to have full efficiency upon the theory the fall from the seat produced the floating kidney and that respondent had no such difficulty during the period immediately before the fall, when that course would rest on the merest conjecture, and hardly that, and is opposed by substantially all the affirmative evidence, direct as well as circumstantial ? This court has said, and it is one of the vital principles of our system of jurisprudence, where controversies as to facts must be settled by jury interference, that no amount of mere possibility or conjecture can afford sufficient weight to support a probability, much less a reasonable certainty. When a verdict is allowed to stand in violation of that salutary principle, the jury system is discredited. It should have its proper dignity. That dignity is great and commanding Avhere there is any basis for diverse reasonable inferences. Where there is not, it has no function to perform at all. To arouse it to activity and to rest upon its baseless fiat, gives the law the cast of an instrumentality of wrong rather than of justice.

Now the award of damages, below, was made by the jury and modified, though allowed to stand, by the court, upon the theory that the respondent was not afflicted with floating kidney prior to her fall from the seat. As I do not think there is any fair basis for that, I cannot escape tbe conclusion, that tbe verdict is excessive. As before indicated, there was pretty strong evidence that tbe fall, moderately, increased a prior long-standing infirmity, and tbe award of damages .should therefore be largely decreased as in Baxter v. C. & N. W. R. Co. 104 Wis. 307, 80 N. W. 644, so as to cure the infirmity, and so emphatically as to avoid prejudicing appellant by compelling it to submit to the modified award without a new trial.