88 Wis. 56 | Wis. | 1894
The first error claimed is this: The plaintiff was permitted to testily, over defendant’s objection, that he had learned no business or trade, that he had no education, and could not do office work. It was understood that this evidence was intended to bear upon the questiou of the amount of the plaintiff’s damages. An authority cited
The second error claimed is that the defendant’s expert witness was not permitted to give his opinion as to what would have been the effect upon the plaintiff’s arm if the car wheels had run over it. It was not claimed by the plaintiff that the wheels did run over his arm. He claimed that the wheels in some way caught'and crushed his elbow, and left him with a stiffened and comparatively useless arm. This does not seem to have been seriously disputed. It could really throw little light upon the extent of the injury, or the precise manner of its infliction, to show that the arm would have been severed if the wheels had actually passed over and across it. So the proposed evidence had little relevance. If relevant, it was not a subject for expert testimony. It is a matter of common knowledge that a car wheel passing over a man’s arm which lies across the track will probably cut the arm off. The evidence could not have enlightened the jury upon that subject.
The plaintiff was permitted, over the defendant’s objec
The court refused to submit in the special verdict two questions requested by the defendant. The first question, which was submitted is: “Was the defendant, or its servants, guilty of any negligence which was the proximate cause of injury to the plaintiff?” The defendant asked to follow that question with this: “If you should answer the foregoing question, number one, in the affirmative, in what did that negligence consist?” This question the court refused to submit. This is the fourth alleged error. The question which was submitted included the issuable fact of the defendant’s negligence. This was a material issuable fact in the case. The question proposed by the defendant is not addressed to any issuable fact in the case, but calls upon the jury to report, in their special verdict, the evidential facts from which they shall draw their conclusion of the issuable fact. It is now, since the subject
The second of the defendant’s proposed questions which the court refused is: “ Gould the defendant, in the exercise of ordinary care, have avoided the injury to the plaintiff?” It is plain that, if the question should be answered in the negative, it in effect answers the first question in the negative; for, if the defendant could not, by the exercise of ordinary care, have avoided the accident, then it was not in fault, and could not have been guilty of negligence which caused the plaintiff’s injury. It is, in effect, a repetition of the first question -which was submitted. It could subserve no useful purpose to repeat the question in a different form of words, while possibly the jury might fail to observe the practical identity of the questions, and might possibly give answers which should be found to be inconsistent, and so the verdict might be made ineffectual. Such results are to be avoided so far as care in forming the questions to be submitted in the special verdict can go. The question was not necessary to a complete verdict. There was no error in the refusal to submit these questions.
The fifth alleged error relates to the charge of the court. The judge instructed the jury as to some of the elements or facts to which attention should be given in forming their estimate of the value to be attached to the testimony
The same observation answers another objection to the instructions. The court did not call the attention of the jury to the fact that the plaintiff, during a part of the time while his % damages were accruing, was an infant, nor instruct them not to include in the damages assessed compensation for loss of time or for impaired ability to labor during his minority. The charge on the general subject of damages for loss of time and impaired ability to labor is not complained of. No doubt the omission to instruct on this point was an oversight. The defendant should have called the attention of the court to the subject. Stewart v. Ripon, 38 Wis. 584.
The court also instructed the jury, as bearing on the subject of the assessment of the damages, that they should consider the plaintiff’s mental suffering, caused by the accident. The objection is that such damages are special damages and are not claimed in the complaint nor mentioned in the evidence. But damages which are the natural and necessary consequences of the injury are not special damages. They do not need to be pleaded nor specially proved. They are presumed from the injury itself. The law implies that injury to the feelings follows serious personal hurts. 1 Suth. Dam. (2d ed.), §§ 419-421; Stewart v. Ripon, 38 Wis. 584.
The sixth alleged error is: The verdict is against the weight of evidence, and the damages are excessive. The
By the Court. — The judgment of the superior court of Milwaukee county is affirmed.