206 Wis. 94 | Wis. | 1931
On the 29th day of June, 1929, the plaintiff was an employee of the Gridley Dairy Company, in the city of Milwaukee. About 1:30 a. m. of that day he was delivering milk to the patrons of the company on the Blue Mound highway in said city. His milk wagon was proceeding east on the south side of the highway and in close proximity to the curb. A tourist going west on the Blue Mound highway brought his car to a stop on the north side thereof and crossed the street to the milk wagon to make inquiries of the plaintiff. He engaged in conversation with the plaintiff. While so engaged, the tourist at least was standing on the pavement on the left-hand side of the wagon. The plaintiff was standing either in the door of the wagon, or upon the wagon, or upon the pavement on the left-hand side of the wagon in close proximity thereto. While thus engaged in conversation the defendant approached with his automobile from the west, on the south side of the Blue Mound highway, crashed into the milk wagon and knocked the plaintiff to the pavement, causing serious physical injuries.
This action was brought by the plaintiff to recover damages. The complaint alleged two causes of action, one based upon gross negligence and one upon ordinary negligence. The court submitted both degrees of negligence to the jury, instructing them that if they found the defendant guilty of gross negligence they need not answer the questions relating
It is contended that there is no evidence in the case to sustain the finding of gross negligence. The evidence relied upon by the plaintiff to establish gross negligence justifies the conclusion that the defendant was driving his automobile while in an intoxicated condition. There was practically no traffic on the highway at the time of the accident. The road was forty feet in width. The milk wagon was well supplied with lights. There were two lights on the inside of the wagon which could be seen through an open door in the rear. There were two lights on the outside and one under the wagon. The evidence justifies the conclusion that the defendant was driving at a high rate of speed and did not see these lights. The defendant admits that he did not see either the wagon or the lights until he was within six or eight feet of it.
The evidence further discloses that the defendant had been attending a party at the “Golden Pheasant,” a road-house on the Blue Mound road, which party commenced about 9 :30 of that night. Gin was drunk at the party, although defendant claims he drank none of it. The evidence justifies the conclusion that there was a bottle containing gin in his car at the time of the accident. A number of witnesses testified that the defendant was under the influence of liquor immediately after the accident. Two witnesses' testified that when they arrived upon the scene and asked what was the
This makes it unnecessary for us to consider whether the question of plaintiff’s contributory negligence should have been submitted to the jury, and leaves only the question of whether the judgment is excessive, or whether the amount assessed by the jury indicates bias or prejudice on the part of the jury.
At the time of the accident the plaintiff was earning $145 per month. He was unable to work for approximately eighteen months, after which he was given employment by his former employer at the rate of $115 per month. At the
We have then an actual monetary loss of $4,000, a twenty-five per cent, disability of the leg, loss of memory, headaches and dizzy spells, a permanent loss of earning capacity, the loss of his teeth, loss of the permanent function of his jaw bone which seriously interferes with the proper mastication of his food, and a protracted period of acute' pain and suffering. The injury to the jaw bone was a most unusual one and its consequences must be serious. His inability to properly masticate his food must be attended with injurious consequences to his health. We think that under all these circumstances $15,000 is the least amount which any impartial jury, properly instructed, would award the plaintiff.
The only further question is whether the fact that the jury awarded $24,250 indicates passion and prejudice which taints the verdict. The only thing that can be said about the verdict is that the damages awarded are high. This, however, is frequently the case. From time to time trial courts and this court have occasion to reduce the amount of damages awarded by the jury. This incident is not generally regarded as indicating passion or prejudice on the part.of the jury. There were elements of injury in this case of an unusual and shocking nature. When it is realized that the assessment of damages in a case like this rests largely in intuitive appraisal, the amount of the verdict cannot be regarded as indicating prejudice and passion. We discover no error and the judgment must be affirmed,
By the Court. — So ordered,