147 Wis. 546 | Wis. | 1911
Tbis action is brought to recover damages for an injury sustained by reason of falling on an alleged defective crosswalk at tbe intersection of Grand avenue and Fifteenth street in tbe city of Milwaulcee. Tbe jury found tbe defendant was not negligent and that plaintiff was guilty of contributory negligence. Apparently to emphasize tbe answers returned, tbe jury stated that they unanimously agreed on such answers. They further found that tbe plaintiff
Tbe undisputed evidence is tbat tbe radius of tbe left wrist was fractured; tbat plaintiff was obliged to keep bis arm in splints for about two months and tbat be suffered pain continuously during tbat time, as well as considerable pain thereafter, and tbat tbe use of tbe left arm was materially impaired at tbe time of tbe trial. There was medical testimony to tbe effect tbat it was reasonably certain that there would be some permanent impairment of tbe use of tbe arm. Tbe evidence fairly shows tbat tbe plaintiff incurred obligations to tbe extent of $46 for X-ray treatment, medical attendance, and medicines, although some technical objections are made to its sufficiency. It would thus appear tbat tbe jury allowed tbe plaintiff $9.33 for tbe pain and suffering which be endured from a broken wrist and for such impairment of tbe use of bis arm as be sustained. The inadequacy of tbe damages awarded would seem to be sufficient to justify tbe court in saying tbat tbe verdict was perverse and to warrant it, in tbe exercise of sound discretion, in setting tbe same aside for tbat reason. Whitney v. Milwaukee, 65 Wis. 409, 27 N. W. 39 ; Gillen v. M., St. P. & S. S. M. R. Co. 91 Wis. 633, 65 N. W. 373. Indeed, where tbe answer to one question in a special verdict indicates tbat tbe jury were actuated by passion and prejudice in returning such answer, it is tbe duty of tbe court to set tbe verdict aside, unless satisfied tbat the passion and prejudice affected only tbat particular question. “If it appears tbat tbe elements of passion and prejudice may have entered into, and probably did affect, tbe decision of other questions in the case, tbe court’s duty is to grant a new trial absolutely.” McNamara v. McNamara, 108 Wis. 613, 619, 84 N. W. 901. If the assessment of damages in this case did not establish the perversity of tbe verdict, we should hesitate to disturb the con-
It is argued by the appellant, however, that the order appealed from is erroneous for the reason that the court should have directed a verdict for the defendant, because there was no evidence produced which would warrant a jury in holding the defendant negligent, and because the plaintiff was guilty of contributory negligence as a matter of law. If either of these contentions is correct, then any prejudice the jury might have had could not injuriously affect the plaintiff. We have read the evidence carefully. We are satisfied that it was ample to warrant a finding favorable to the plaintiff on both •questions, and as there must be another trial of the action we •deem it best to refrain from discussing it.
It is further argued that the court erred in ordering that the costs of the first trial should abide the event of the next •one. It has been frequently held that, where a verdict is set aside on the ground of perverseness, the costs of the trial should not be charged against the moving party. Pound v. Roan, 45 Wis. 129; Becker v. Holm, 100 Wis. 281, 75 N. W. 999; Schweickhart v. Stuewe, 75 Wis. 157, 43 N. W. 722; R. Connor Co. v. Goodwillie, 120 Wis. 603, 606, 98 N. W. 928. We think it was within the discretion of the court to make the order which it did in reference to costs, and that there was no error committed against the appellant in this regard.
By the Court. — Order affirmed.
