Stewart v. City of Ripon , 38 Wis. 584 ( 1875 )

Lyon, J.

The exceptions taken during the trial to the rulings of the court on objections to the admission of testimony are few and unimportant, and are not relied upon by the learned counsel for the defendant. Hence they require neither discussion nor statement.

1. To the charge of the court but a single exception necessary to be considered was taken. The court (among other things) instructed the jury as follows: “If you find for the plaintiff, and that his present condition is the natural result of such injuries, he is entitled to receive such sum as in your judgment, under all the circumstances of the case, he ought to recover for the pain and suffering, both bodily and mental, which he has endured, and for the pain and mental anxiety which it is reasonably probable he will endure hereafter, by reason of such injuries, talcing into consideration the impaired usefulness of the limb, hath past and in the future.” The exception above mentioned is to th.e words in italics.

Does the instruction state the law correctly? The father of the plaintiff is entitled to the services of his son during minority, and for such services, or the loss thereof for any cause, the father alone can maintain an action. This is elementary. Hence, if the instruction before us is, that the plaintiff can recover damages in this action because of his impaired ability, duri ng minority, to render services which belong to his father, it is erroneous. But we do not so understand the instruction. Certainly the court did not say to the jury in terms that if the plaintiff recovered he might have damages for the impaired usefulness of the arm both past and future; and we think that no such meaning can justly be extracted from the language employed. On the contrary, it seems quite clear to us that the impaired usefulness of the limb is spoken of merely as an element of the bodily and mental suffering of the plaintiff for which he might recover damages, and not as a distinct and independent ground for damages. Manifestly, the consciousness that his arm is disabled for life must necessarily greatly increase the mental suffering of the plaintiff, and damages for such suffering belong to him and not to his father. In brief, we understand the instruction to be, substantially, that if the plaintiff was entitled to recover, the jury should award him damages for bodily and mental suffering, past and future, caused by the injuries,'having due regard to the intensity and probable duration of such suffering; and that the consciousness of the plaintiff tha,t the use of his arm was greatly impaired, was an element of mental suffering to be considered by the jury. This, we think, is a fair and reasonable interpretation of the language of the court. If the language employed was liable to be understood in a different way, the court should have been asked to instruct the jury explicitly, that the plaintiff could net recover for loss of the use of his arm during his minority. Such an instruction would have removed all possible danger of misapprehension of the charge. But no such instruction was asked, and we cannot disturb the judgment merely because the court might have stated the proposition in terms a little less liable to be misunderstood by the jury.

2. The next position of the learned counsel for the defendant is, that the damages recovered are not the direct and proximate result of the defendant’s negligence. He claims that the plaintiff has recovered full damages for all the injuries he has sustained, while some portion of those injuries is the result of the malpractice of some or one of the surgeons who treated him therefor, and of the accidental circumstance that there was in his system an organic tendency to scrofula, which was the proximate cause of the necrosis of the bone.

As regards the alleged malpractice, it need only be said that the court instructed the jury that “ the city is not liable for results which may follow bad, improper or unskillful treatment of the injury, nor for injuries which the boy may have received in the course of such treatment.” It must be presumed that the jury heeded the instruction, and that no damages caused by the alleged unskillful treatment were awarded.

On the other point the court gave no specific instruction, and none was asked, but the jury were told, in substance, that the damages must be confined to the natural and legitimate results of the injury. Undoubtedly, this is the correct rule of damages. If the instruction was not sufficiently specific for the exigencies of the case, a proper one should have been prayed by the defendant. The judgment should not be disturbed, merely because the court did not, on its own motion, give a specific instruction concerning such alleged organic tendency to scrofula.

It is evident, however, that the necrosis of the bone, and the permanent injury to the arm resulting therefrom, entered largely into the consideration of the jury, and that damages were awarded therefor. Hence, although the charge may be free from error, yet if the necrosis was the result of an exceptional and unforeseen cause, no damages can properly be awarded for the injury caused by it. In such case the damages are not the direct and proximate result of the defendant’s negligence. The law on this subject is stated by Bovill, C. J., in Sharp v. Powell, L. R, 7 C. P., 258, as follows: “ No doubt one who commits a wrongful act is responsible for the ordinary consequences which are likely to result therefrom; but generally speaking he is not liable for damage which is not the natural and ordinary consequence of such an act, unless it be shown that he knows, or has reasonable means of knowing, that consequences not usually resulting from the act are, by reason of some existing cause, likely to intervene so as to occasion damage to a third person. Where there is no reason to expect, it, and no knowledge in the person doing the wrongful act that such a state of things exists as to render the damage probable, if injury does result to a third person, it is generally considered that the wrongful act is not the proximate cause of the injury, so as to render the wrongdoer liable to an action.” The cases of Putnam v. Broadway & 7th Avenue R. R. Co., 55 N. Y., 108, and McGrew v. Stone, 53 Pa. St., 436, cited on behalf of the defendant, are to the same effect. We think these cases are in entire harmony with the remarks of Judge Redfield on the same subject, quoted approvingly in Servatius v. Pichel, 34 Wis., 299.

Assuming that but for the plaintiff’s organic tendency to scrofula there would have been no necrosis of the bone, and assuming that the damages awarded are greater because of such necrosis, we are to determine, in the light of the rule of law above stated, whether the defendant had reasonable grounds to expect that an injury caused by its defective sidewalk would or might result as the plaintiff’s injuries have resulted. If the defendant (or, what is the same thing, its duly constituted officers through whom it acts) had reason to expect such a result, its negligence is the proximate cause of the whole injury for which the plaintiff has recovered ; otherwise not.

The public streets and sidewalks in a city are not constructed and maintained for the sole use of healthy and robust people, but for the use of the infirm, the sick and the decrepit, as well. They may lawfully be travelled by every citizen, without regard to age, sex or physical condition. If the city negligently permits such streets or sidewalks to remain out of repair, and any person (who is himself free from negligence) is injured thereby, the city is liable for the injury. It is chargeable with knowledge that people of different bodily conditions travel its streets, and that among these are the weak, the decrepit, and those with organic predisposition to disease. It is reasonable to expect that in certain cases, if an injury happen to one of the latter class, his full recovery therefrom may be retarded or prevented by such predisposition or tendency to disease. In the present case the defendant is chargeable with knowledge that persons with a constitutional tendency to scrofula (a very large class in any community) constantly travel its streets and sidewalks, and that such tendency to that disease might greatly aggravate a bodily injury. Hence, it had reasonable grounds to expect that if one of that class were injured by reason of the admitted defect in the sidewalk, the disease might develop, and greatly retard and perhaps prevent a cure, as in this case. If these views are correct, it necessarily follows that the negligence of the defendant was the proximate cause of the whole injury for which the plaintiff recovered damages.

This conclusion is sustained by the late case of Oliver v. The Town of La Valle, 36 Wis., 592. In that case the plaintiff, who was a married woman and pregnant, was riding with her brother, and, when crossing a defective bridge in a public highway, the team broke through the bridge. The plaintiff jumped from the wagon and assisted her brother in an attempt to extricate the team. Failing in this, at the request of her brother, she ran some distance to obtain more assistance. The result of her fright and exertions was a miscarriage. She brought an action against the town, and the principal damages proved on the trial were the consequences of such miscarriage. It was held that such damages were the proximate result of the negligence of the town, and a verdict and judgment therefor were sustained. In principle, that case is like the present one. See also Kellogg v. The C. & N. W. R'y Co., 26 Wis., 223.

3. It is claimed that the damages recovered by the plaintiff are excessive. The plaintiff’s injuries are serious and permanent, and may greatly impair his ability to earn his subsistence ; and the damages which he ought to recover therefor are peculiarly for the determination of the jury. On the authority of Schmidt v. Milwaukee & St. Paul R'y Co., 23 Wis., 186; Karasich v. Hasbrouck, 28 id., 569; and Houfe v. The Town of Fulton, 34 id., 608, we are precluded from holding that the damages are excessive. See Duffy v. C. & N. W. R'y Co., 34 Wis., 188, and cases cited.

This disposes of all the alleged errors in the proceedings and judgment of the circuit court, adversely to the defendant.

By the Court. — The judgment is affirmed.