203 Wis. 261 | Wis. | 1931
No complaint is made by appellant of the findings of the jury that he was negligent and the plaintiff ■not negligent. He contends that the damages are excessive and that a new trial should be awarded on this ground. He
(1) We are of opinion that the verdict of the jury cannot be considered excessive. The humerus bone of plaintiff’s right arm was fractured in the upper portion and the elbow joint was broken. These two fractures made a successful setting operation a long and exceedingly painful process. The tension of the muscles rendered it necessary to pull the lower part of the upper arm so as to bring the broken bones in proper apposition and this pulling put the elbow out of place. To set both fractures at the same time was extremely difficult and required frequent adjustments over a protracted period. There is.considerable loss of motion of the fractured arm at the elbow, the arm is not as strong or large as the left and should normally be both larger and stronger. There was also a severe cut on the left arm near the elbow which left a scar in healing which is tender to the touch and from its location subject to frequent irritation from accidental contacts. An injury to the-nose left it so crooked as to constitute a considerable deformity, which is likely to increase with age. There was also a head injury from which plaintiff still suffers somewhat. There were other injuries less serious.
(2) We consider that whether the drivers of the trucks were negligent was a jury question under the evidence, and that defendant Huebsch is not entitled to have judgment for contribution directed against Schultz.
(3) Appellant’s claim to a new trial for misinstruction of the court regarding conduct in an emergency is grounded
“But bear in mind that even prudent and intelligent persons while exercising proper care may, in a sudden emergency, do that which afterward appears to have been the wrong thing to do, and will still be held not to have failed to exercise ordinary care if they did what to them at the moment appeared to be the best or safest thing to do.”
The court did not limit application of the rule to emergencies not created by the negligence of the one acting in the emergency and the statement implies that an emergency existed. The instruction is faulty both for not putting it up
(4) The charge of prejudice resulting from a remark of counsel for Schultz in argument to the jury is more grievous than the usual complaint of like nature. The remark was to the effect that if members of the jury would read their automobile Insurance policies they would see that the insurance companies are not responsible when the insured’s car is driven by one not having a license. The licensing age for drivers of trucks is sixteen years. Sec. 85.08, Stats.
(5) The plaintiff has not appealed from the judgment. She is content with a judgment against the defendant Huebsch alone. The judgment should be affirmed in so far as it awards her damages against Huebsch. Affirmance of this part of the judgment and reversal of the portion of it dismissing the cross-complaint of the defendant Huebsch against the defendant Schultz will require entry of two judgments in a law action, which is unusual, perhaps without precedent. But we see nothing in reason, as distinguished from precedent, to prevent this. The situation presented by the issue of contribution between tortfeasors whenever a defendant claims a cause of action over against another was first discussed in Bakula v. Schwab, 167 Wis. 546, 168 N. W. 378. It was there held that under sec. 2610, now 260.19 (3), Stats., the court had power to interplead as a party in a tort action one against whom the defendant claimed the right of contribution as a joint tortfeasor in the event that he was held liable to the plaintiff. It was later pointed out in Wait v. Pierce, 191 Wis. 202, 225 et seq., 209 N. W. 475, 210 N. W. 822, that while at common law the right of contribution did not arise until the defendant tortfeasor held liable had made payment, under our practice we permit him to interplead the other tortfeasor and raise the issue of contribution by cross-complaint against him. The two issues, that between the plaintiff and the defendant first sued and that between the latter and the interpleaded defendant, really constitute two separate actions which we permit to be
By the Court. — The judgment is affirmed in so far as it awards the plaintiff recovery against defendant Huebsch and reversed in so far as it dismisses the latter’s cross-complaint against the defendant Schultz, with direction to order a new trial of the issues under the cross-complaint of Huebsch.