78 Wis. 84 | Wis. | 1890
The facts of this case are briefly as follows: The plaintiff was about fourteen years of age, and the defendant about eleven years of age. On the 20th day of February, 1889, they were sitting opposite to each other across an aisle in the high school of the village of "Wauke-sha. The defendant reached across the aisle with his foot, and hit with his toe the shin of the right leg of the plaintiff. The touch was slight. The plaintiff did not feel it, either on account of its being so slight or of loss of sensation produced by the shock. In a few moments he felt a violent pain in that place, which caused him to cry out loudly.' The next day he was sick, and had to be helped to school. On the fourth day he was vomiting, and Dr. Bacon was sent for, but could not come, and he sent medicine to stop the vomiting, and came to see him the next day, on the 25th. There was a slight discoloration of the skin entirely over the inner surface of the tibia an inch below the bend of the knee. The doctor applied fomentations, and gave him anodynes to quiet the pain. This treatment was continued, and the
The learned circuit judge said to the jury: “ It is a peculiar case, an unfortunate case, a case, I think I am at liberty to say, that ought not to have come into court. The parents of these children ought, in some way, if possible, to have adjusted it between themselves.” ¥e have much of the same feeling about the case. It is a very strange
There were two errors committed on the trial and in the admission of testimony, too important and material to be overlooked.
1. Dr. Philler, a witness for the plaintiff, was asked: “ What, in your judgment, was the exciting cause of the condition of this leg as you found it?” This was objected to on the ground that the foundation had not been laid for such a question. The objection was overruled, and the witness answered: “ Under the history I learned at the time, a certain frawmabism — a certain injury received while at school, from the foot of another classmate; in other words, the blow upon the shin bone.” The learned counsel of the appellant now contends further that the question was objectionable because it sought to obtain a conclusion of fact from the witness, which it was the province of the jury only to, find. But we will consider only the ground of the objection then stated and found in the record. The learned circuit court ruled directly on the-objection that the foundation for such a question had not been sufficiently laid. The witness had no personal or professional knowledge of the case until the 6th day of March, about two weeks after the injury. His answer shows his incompetency to answer
. 2. The father of the plaintiff, Seth B. Yosberg, as a witness on behalf of the plaintiff, was asked in relation to his circumstances and concerning his employment and the number of his children, and answered that his business was that of teamster for the Barker Lumber Company, and that he had three children. This was objected to by the learned counsel of the defendant. The learned counsel of the plaintiff stated that he wanted to show the situation of the family, and if the father was able to educate the plaintiff, his son, himself it would make quite a difference as to the amount of damages he should have, and if the plaintiff has a rich father who could take care of him and provide for and educate him he did not think the jury would be warranted to give as large a verdict. The court overruled the objection. This occurred in the presence of the jury, and the learned counsel of the respondent commented on it to the jury by permission of the court against the further objection of the defendant, so that the jury must have considered themselves instructed to give the plaintiff greater damages in consequence of the poverty of his father. He was a hired man, and therefore could not have been rich. This was not a case for exemplary or punitory damages, and the plaintiff was entitled only to strict compensatory damages in case he recovered in the action. In such a case it would not have been proper even to prove the defendant rich or poor. Hare
On account of these two errors the judgment will have to be reversed.
By the Court.— The judgment is reversed, and the cause remanded for a new trial.