73 Wis. 147 | Wis. | 1888
Upon the facts of the case as found by the jury there is no contention on the part of the learned counsel for the appellant that the plaintiff was not entitled to a verdict for some amount of damages. The errors relied upon for a reversal of the judgment are exceptions taken to the admission of evidence, to the instructions of the court to the jury, and a refusal to give an instruction requested by the appellant.
It is insisted that it was error to permit the plaintiff to give the following evidence: “How long were you in there?” (meaning the culvert.) “Oh, I could not tell,— I was so full of fright; at last, I helped myself out.” “ What were you frightened about?” Objected to; overruled; exception. Answer. “ I was afraid the cars were switching back on me.” “How did you go home?” A. “Full of fright.” It is claimed by the learned counsel for the appellant that the plaintiff is not entitled to recover damages
Upon the subject of damages, the trial judge instructed the jury as follows: “She is entitled to sugh amount of damages as, in your judgment, will compensate her for all the physical injuries directly resulting from the negligence complained of, as well as the mental suffering resulting therefrom. This does not include-punitory damages, but does include such pain and suffering of body and mind as you find from the evidence she has suffered from the negligence of the defendant and without her fault, and which is directly the result of such negligence. ... If you find the plaintiff is entitled to recover, say, from all the evidence, •how much will compensate her for all the injuries sustained, the pain and suffering caused by the negligence complained of, if you so find; if you find it was the direct result .thereof,” etc. “The plaintiff, if she is entitled to recover, is entitled to full compensatory damages for all the direct physical injury, as %oell as the mental suffering you may fund from the evidence resulted from the injury caused by the negligence complained of.1” “ By compensatory damages we mean such damages as, in your judgment, will be a reasonable compensation to the plaintiff for all the pains and suffering, in the past, resulting/rcw the accident, and, also, any future sufféring therefrom, which from the evidence you may find is reasonably certain to result from said injury.” These instructions were separately excepted to by the appellant. The appellant also requested the judge to instruct the jury as follows: “The plaintiff is not entitled to recover any damages on account of any fright which she experienced on account of the cars backing down towards her upon the side track.” This instruction was refused, and the appellant excepted.
It is argued by the learned counsel for the appellant that
It is not pretended but that the agent of the company had full knowledge of all the dangers which surrounded the plaintiff, when he directed her to leave the cars. The company cannot, therefore, say that these dangers were too remote, and that the terrorizing effect which they might have was one "which could not have been anticipated by it. As before said, the conductor, who directed the plaintiff to leave the car when and where she did, knew that cars would be backed upon the side track which he compelled her to travel upon; he knew the night was dark, and might reasonably be held to have known that the back
In Seger v. Barkhamsted, 22 Conn. 290, which was an action against the town to recover damages for maintaining a defective bridge, the trial judge instructed the jury that, if they found for the plaintiff, they had a right to consider all the circumstances of danger and peril attending the accident. To this instruction exception was taken; and
It must be remembered that in this case and in all others of a similar character the ground upon which the defendant is held liable for any damages is the wrongful act of the agent of the company in directing the plaintiff to leave the cars at the time and place designated, and not the fact that after leaving the cars the plaintiff fell into the cattle-guard and was injured. That fact was only an aggravation of her damages she would have been entitled to recover had she received no personal injury; and in fixing the amount of the damages the plaintiff ought to recover it seems but reasonable and just that all the circumstances of peril and danger which surrounded her at the time she was unlawfully directed to leave the cars must be considered, and that it was not error to direct the jury that in assessing the damages they might consider the fright which the plaintiff was subjected to by the unlawful act of the conductor. \This
The fourth and fifth errors alleged relate to the cross-examination of the witness Askew, who was called for the defendant. While we think the court should not have permitted the witness to be questioned on his cross-examination as to any matter not inquired of by the defendant on the direct, or, if permitted to do so, the court should not have allowed the plaintiff to contradict his answers, we are of the opinion that this examination, upon a collateral matter, was not so material to the real questions at issue as to justify this court in reversing the judgment for such error on the part of the trial judge. It is not apparent that such error could have had any influence with the jury upon the issues of fact' found by them on the trial.
The sixth alleged error is clearly not an error. It was clearly competent for the plaintiff to show bjr her evidence that the injury to her person was of such a character as to render her unable to perform her work after the injury as she had been able to do before. Although such evidence would be proper and competent in an action by the husband to recover for loss of service, it was also competent
It is also alleged that it was error to instruct the jury as follows: “ She is entitled to recover for any further physical suffering 'which you may find from the evidence is rea-sonabty certain to result from the injury complained of.” It is said there was no evidence upon which to found an instruction of this kind. Ve think the record shows that there was evidence tending to show that the plaintiff had not, at the time of the trial, fully recovered from her injuries. There was sufficient evidence upon which to base the instruction.
The eighth error alleged as to the instruction given by the court becomes immaterial, as the jury found, in effect, that the conductor directed her to leave the cars at the place where she did leave them.
It is urged that the verdict is excessive and should have been set aside for that reason. The trial court having refused to interfere on that ground, this court will not set aside the verdict for that reason, unless it is clearly apparent from the evidence that the jury was actuated by passion or prejudice. We do not think the evidence discloses any such reason for reversing the judgment in the case.
By the Court.— The judgment of the county court is affirmed.