Bruske v. Neugent ( 1903 )

Dodge, J.

1. The first error assigned is the giving of the instruction quoted in the statement of facts; it being contended that such an instruction is misleading, where the plaintiff’s evidence is confined to a definite event at a definite time, because of a tendency to lead the jury to believe that they may go outside of the evidence, and, although they do not believe that the assault was committed on the day named,, nevertheless may find such assault was committed at some other time. Confessing that there is much force to this argument, and that, if the question were a new one, we might incline to adopt it, still we feel constrained to adhere to the views expressed in Taylor v. Young, 61 Wis. 314, 21 N. W. 408, which has now stood for many years with no intimation of criticism. That case fully supports the application of the rule of law contained in the instruction to the situation presented in this case, and upon its authority we hold that no-error was thereby committed.

2. Some complaint is made that certain instructions were so framed as to lead the jury to think that they were merely to compare the plaintiff’s testimony with the defendant’s as to whether the assault was in fact committed, and to exclude from their consideration all other testimony, some of which tended to show indefiniteness of memory in the plaintiff, or even wilful falsification by her, and other of which tended, as has been already said, to establish an alibi. We do not think the portions of the charge mentioned subject to this criticism. While the jury were told that, if they believed the defendant’s testimony that he committed no assault, they must, of course, render a verdict in his favor, there was in this no suggestion that his was the only evidence tending to that result; and they were also instructed to consider and weigh the evidence and credibility of each witness who had testified in the case. We think that the whole charge fairly submitted to the jury for consideration'the relative weight of all the evidence tending for or against either party, and are unable to say that any error prejudicial to the defendant appears therein.

3. The verdict is assailed as excessive in amount. With this contention we cannot agree. The mere physical or pecuniary injury was, of course, insignificant; but the outrage to the feelings of a modest and chaste woman, resulting from tbe immoral solicitation wbicb sbe testifies accompanied, the assault, is such that we cannot feel justified in deeming an allowance of $500 so grossly excessive as to warrant this-court in interfering. Hacker v. Heiney, 111 Wis. 313, 317, 87 N. W. 249.

By the Court. — Judgment affirmed.