Ray v. Lake Superior Terminal & Transfer Railway Co.

| Wis. | May 24, 1898

MaRshall, J.

The determination of the trial court overruling the challenge to the array of juroi’s cannot be disturbed. When jurors have been drawn and designated according to law to serve at a term of court, a mere change in tbe method of obtaining jurors, thereafter made, will not affect those already drawn, but they will continue, notwithstanding such change in the law, legal jurors for the term unless excused or discharged by the court.

Several errors are assigned, all involving the subject of whether there was evidence to sustain the verdict on two points: (1) Was coupling cars within the scope of plaintiff’s employment so as to bring the case within the coemployee act (ch. 220, Laws of 1893)? And (2) was actionable negligence shown on the part of the engineer in the manner he caused the cars to move back as plaintiff was about to make the coupling? It is considered that there was some evidence, which the jury had a right to believe if they saw fit, tending to prove the affirmative of both such questions. Therefore, according to a familiar principle, the decision of the trial court, refusing to set aside the verdict and grant a new trial as contrary to the evidence, cannot be disturbed.

It is further assigned as error that the damages are excessive, particular mention being made of the fact that the jury divided the recovery into two elements by assessing $500 of the $750 for future loss. No reason is perceived why that should be held to affect the verdict. Future loss was an element distinct from all others, and one for which plaintiff had a right to recover if he had a right to recover at all. Certainly, the fact that the amount assessed for that element ■was stated separately could not in any way have prejudiced the defendant. On the contrary, it was a valuable aid in determining whether the whole verdict was excessive. According to the evidence plaintiff’s hand was quite severely ^injured. lie was not able to remove the bandages for three weeks, he suffered considerable pain, and the cure left his band somewhat maimed and out of shape, one of the fingers being stiff so as to interfere with the usefulness of the hand. We cannot say that a verdict of $150 for such an injury, to a man fifty-five years of age, is so large as to evince passion and prejudice on the part of the jury, therefore the verdict cannot be disturbed as excessive.

By the Court.— The judgment of the superior court is affirmed.