288 N.W. 241 | Wis. | 1939
Action for damages brought by Thomas Schields, July 27, 1938, against Herman Fredrick for injuries sustained as a result of a collision of automobiles. Defendant interposed a counterclaim alleging that the collision was the result of the negligence of Schields, and demanded judgment in his favor for damages. The judgment was in favor of the defendant on his counterclaim.
The collision occurred shortly before 11 o'clock p. m., July 8, 1938, after defendant's machine had stalled and while it was standing at the edge of the highway about one third off the concrete and two thirds on. Both right wheels were off the concrete and the car was at a slight angle to the northwest. The case was tried to the court and jury. The special verdict found the defendant free from negligence and the plaintiff negligent with respect to lookout, speed, and in not turning to the left to avoid the accident; that these failures were causes of the damages to the defendant; that the *597 damage to the defendant's automobile amounted to $208; doctors' bills, hospital bills, and nurses' bills, $287; and loss of services of his wife who was injured in the accident, $1,800. There were motions by plaintiff to change the answers to the special verdict and for a new trial. The defendant's motion for judgment was granted, and from the judgment plaintiff appeals. The collision between the two cars occurred while defendant's car was standing with its left wheels occupying about four feet of the concrete leaving to the left of the car upward of thirty-five feet of the traveled portion of the highway. The right wheels of the car rested upon the shoulder of the road. Defendant's wife was sitting in the car when the collision took place and she was injured. The jury was of the opinion that the defendant's stopping and the position of the car were not in violation of any law of the road, and that under the circumstances he was not guilty of any negligence. The testimony is that as defendant was proceeding along the highway he noticed indications of a flat tire on his rear wheel, and at a point where the accident occurred he drew off to the side of the road and his engine stalled. He testified that he was unable to start the engine, and that because it was late at night he decided to go to his home about a mile distant to secure the aid of a hired man and a truck to move the car. The accident occurred a few minutes after defendant's car stopped.
It is considered that the issues framed by the pleadings and the questions of ultimate fact raised under the evidence *598 were for the jury. The answers to the questions in the special verdict put at rest all controversy in this case as to whose negligence caused the collision.
On the question of amount of damages the trial court permitted a physician, who had been engaged to examine the defendant's wife on the day before the trial for the purpose of testifying as to her injuries, to testify to a history of the injuries and recite subjective symptoms as narrated to him by defendant's wife. Objection properly made was overruled and the witness testified to aches, pains, and conditions described to him in an interview in his office, and gave as his opinion that the injury complained of and the discomfort described were the result of an accident on July 8, 1938; that from the history of the case, and from his examination of defendant's wife, his conclusion was "I would think that it was the result of the accident."
Ordinarily, the opinion of a physician based upon subjective symptoms related to him by the injured person during the course of an examination by him for the purpose of testifying rather than for the purpose of treatment is not admissible in evidence. Kath v. Wisconsin Central R. Co.
It is unnecessary to review the objections and rulings further than to say that the ignoring of a rule long since established resulted in this case in erroneously admitting evidence which was of such a character as not only to be capable of influencing the decision of the jury but which undoubtedly did have that effect. Stewart v. Everts, supra.
This results in the affirmance of that portion of the judgment which fixes the liability for the damages upon the plaintiff, but it is considered necessary to have a new trial on the question of damages suffered by the defendant by reason of the loss of services of his wife.
By the Court. — Judgment reversed, and cause remanded with directions to order a new trial solely of the issue of damages to defendant resulting from loss of services of wife. *600