75 Wis. 18 | Wis. | 1889
This case was before this court on an appeal from a judgment against the plaintiff, reported in 70 Wis. 340, and the cause was remanded for a new trial. The main facts were sufficiently stated on that appeal, and it will be necessary only to refer to the evidence applicable to the exceptions. We cannot but think that the exceptions reserved are very technical and do not in a single instance affect the merits of the case. The case has been twice tried, and the last time with great care by the court. The instructions of the court to the jury were very full and fair, and the rulings upon the evidence were in substance correct. But we will briefly dispose of the errors assigned.
1. On the motion for a new trial, on the ground that the verdict was contrary to the evidence: that there was no evidence that any one of the aldermen of the ward in which the accident occurred had knowledge of the defective condition of the sidewalk' a sufficient time before the accident. According to the evidence, as stated in the brief of the learned counsel of the appellant, there were two holes in the sidewalk, one on each side of the steps near the building, of eighteen inches wide and three feet long, leading down into the cellar of the adjacent building. They had been only partially covered with boards. One had been
2. The sustaining of the plaintiff’s objection to the following questions put to the medical witnesses by the defendant’s counsel: “What effect would abortion produce on the uterine and ovarian organs?” “ If a blow or wrench in the side in the iliac region produced peritonitis, would it be local or general? ” “ What are the symptoms of cel-lulitis? ” “ Is it possible for an injury produced by a blow or wrench, which produces inflammation of the ovary and peritoneum, to leave the uterus movable, flexible, and painless?” The court had allowed a very wide cross-examination of the medical witnesses, upon all possible theories, to show that the plaintiff’s injuries were caused by former miscarriages and female diseases, and only sought to limit' it to hypothetical questions based upon the evidence. The questions asked were purely speculative, as was a large portion of the evidence elicited by the cross-examination. Expert questions of this character should be confined to the facts of the case, and hypothetical questions must be predicated upon the facts proved. Luning v. State, 2 Pin. 215; Wright v. Hardy, 22 Wis. 348; Bennett v. State, 57 Wis. 69; Quinn v. Higgins, 63 Wis. 664; Gates v. Fleischer, 67 Wis. 504. The court was very indulgent in the cross-examination, and very properly limited it to a reasonable boundary.
3. Overruling the defendant’s objection to the following question of the plaintiff: “Could the injuries have been caused, as a whole, by a fall through a hole in the sidewalk?” The learned counsel of the appellant does not cite any case in which such an opinion was not allowed to be asked of a medical witness. Indeed, such an opinion is the most common one in cases where the cause of an injury is in question. Any one knows that the' injury to the plaintiff’s hip in this case might have been caused by her falling through this hole in the sidewalk. It is scarcely a question of expert testimony. When the learned counsel insists that his many similar questions, as to whether her injuries might not have been caused by miscarriage and the various complications resulting from it, should have been answered, he admitted this form of the question, and he says in his brief: “ The opinions of medical men are constantly admitted -as to the cause of disease or of death, or the consequences of wounds,” — and cites 2 Best, Ev. § 513, and many other authorities not necessary on so plain a proposition.
4. The court overruled the objection of the defendant to the testimony of N. J. Smalley, the husband of the plaintiff. The witness testified that he was employed by the plaintiff, as her agent, to serve the requisite notice on the city clerk, and to obtain the board that covered the hole in question, and make measurements of the hole, etc.; and he was allowed to testify what he did as such agent. The agency established, the testimony of the husband was clearly competent. O'Conner v. Hartford F. Ins. Co. 31 Wis. 160; Marsh v. Pugh, 43 Wis. 597; Carney v. Gleissner, 58 Wis. 674; Meade v. Gilfoyle, 64 Wis. 18.
5. The instructions of the court to the jury, excepted to,
Lastly, it is contended that the damages assessed by the jury are excessive. The principal ground for this contention is that the material findings of the jury on the former trial were adverse to the plaintiff. If the former result should have any effect upon the disposition, of the cause on the last trial, it should be that the plaintiff ought not to recover anything. If the first result should have any effect upon the last, it should have full effect. But it should have no effect whatever. The whole object of a new trial would be defeated by any other rule. The last trial should stand or fall by itself, independently of the former result. The extent of the personal injury of the plaintiff was the strongly contested point of the trial. A very large part of the volu
By the Court.— The judgment of the circuit court is affirmed.