Salo v. Dorau , 191 Wis. 618 ( 1927 )

Doerfler, J.

Three grounds of negligence were alleged in the complaint: (1) excessive speed; (2) lack of proper control; and (3) failure to maintain a proper lookout. Under the evidence a proper jury issue was raised upon each of these grounds. This being so, under the repeated decisions of this court, where a proper request for such separate submission is duly made, it became the duty of the court to comply therewith. Rowley v. C., M. & St. P. R. Co. 135 Wis. 208, 115 N. W. 865; Matuschka v. Murphy, 173 Wis. 484, 180 N. W. 821; Brickell v. Trecker, 176 Wis. 557, 186 N. W. 593.

The questions requested by defendant’s counsel and refused by the court are the following:

“(1) Just prior .to the accident in question did defendant, A. C. Dorau, fail to exercise ordinary care in respect to the speed at which he was driving his car ?

“(2) Just prior to the accident in question did defendant, A. C. Dorau, fail to exercise ordinary care in respect to keeping a reasonable lookout for plaintiff’s car?

“(3) Just prior to the accident in question did the defendant, A. C. Dorau, fail to exercise ordinary care in respect to keeping his car under proper control ?”

In the Rowley Case, supra, this court said:

“This court has several times held that where specific acts of negligence are charged by the complaint, denied by .the answer, and litigated on the trial, a special verdict should contain specific questions covering' these alleged acts, and that the submission of a general question simply asking whether the defendant was guilty of want of ordinary care which proximately caused the plaintiff’s injury is not a compliance with the special-verdict statute and will be error, at least where the proper specific questions are requested.” (Citing a number of Wisconsin cases.) The other cases above referred to hold likewise. ■

In Brickell v. Trecker, supra, where a similar situation was presented, the court said:

“It is not discoverable from the verdict in which one of the respects alleged the jury found the defendant negligent, or whether some thought she was negligent in one respect and some in another. This is a form of verdict that was condemned in Matuschka v. Murphy, 173 Wis. 484. 180 N. W. 821.”

While the speed of defendant’s car was not negligent in the sense that it was operated in excess of fifteen miles per hour, nevertheless from the undisputed facts in the case the jury could readily infer that the speed maintained violated that provision of sub. (2) of sec. 85.08 of the Statutes which provides that:

“No person shall operate a motor vehicle recklessly or at a rate of speed greater than is reasonable and proper with regard to the width, traffic and use of the highways and the rules of the road, or so as to endanger the property, life or limb of any person. ...”

Under the undisputed evidence, the defendant’s car for a number of blocks prior to the accident maintained a distance of between twenty-five and thirty-five feet in the rear of plaintiff’s car. Traveling at the rate of fifteen miles per-hour, it was for the jury to determine whether the defendant maintained a proper lookout. This issue, like that of excessive speed, was peculiarly for the jury.

What has been said on the subject of proper lookout is equally applicable to the issue as to whether the defendant maintained a reasonable control of his car immediately prior to the collision.

No useful purpose will be served in further commenting upon the error of the court in failing to submit defendant’s requested questions in the special verdict, the grounds for holding such refusal as error fully appearing in the cases above referred to and in numerous other Wisconsin cases not cited. Regardless of the various grounds of negligence alleged in the complaint and denied by the answer, if the evidence established but one ground of negligence no error would have been committed in submitting the special verdict in the form prepared by the court; but the evidence did not disclose such a situation, but, on the contrary, raised three distinct and separate issues.

A careful review of the evidence in this case is convincing that the damages found by the jury are not supported by the evidence. None of the-occupants of plaintiff’s car testified that they observed plaintiff’s chest coming in contact with the steering wheel or that he complained of suffering pain at that time. Plaintiff testified that not only did the injury cause severe pain, but that it also resulted in a limitation of his power of motion,, and yet after the injury he drove his car from Superior to his home, a distance of many miles. The only evidence of pain and limitation of motion is founded upon subjective symptoms, but the attending physicians who took an X-ray of his chest could find no evidence of any internal injury or bone fracture, and while the plaintiff in .his complaint alleged a fracture of several ribs, no evidence was adduced to support this allegation, and upon the trial the same was withdrawn. The physicians who attended him immediately after the collision and who treated him for some time thereafter found no .manifestations of physical injury which could reasonably account for either the alleged pain or the alleged limitation of the power of motion, and they testified that in their opinion, based upon their examination, no disability on the plaintiff’s part existed which prevented him from resuming his regular employment. The injury itself was of such a trivial natúre as to nigh preclude a logical inference -either on the part of the jury or of experts that the alleged protracted pain or the alleged limitation of the power of motion could ensue as a natural consequence.

Under the circumstances the testimony based on merely subjective symptoms has but little probative force. At any rate we are convinced that the damages awarded under this state of the evidence are out of all proportion to what can be considered a natural and logical'- consequence of the injury sustained. It may well be that upon a retrial of the cause, either the alleged pain or the alleged disability, or both, may be supported by expert opinion evidence, in which event it is not improbable that a verdict in the sum returned herein, or even greater, will have to be sustained, The record, however, as we find it is unconvincing and highly unsatisfactory and does not support damages as found by the jury.

By the Court. — rThe judgment of the lower court is reversed, and the cause is remanded for a new trial..