Block v. Seibold

Eschweiler, J.

The defendant appellant urges three objections to the result below, namely: as to the contributory negligence of the plaintiff; the form of the fifth question of the special verdict; and the amount of damages.

By plaintiff’s version — and in many of its material features she was supported by the testimony of others — she was standing still on Wisconsin avenue at the end of the iron apron extending from the sidewalk and observing one or two automobiles passing to the east and a passenger bus just stopping at the southwest crossing of the intersection; that she had looked to the east and noticed no car approaching from that direction. There was testimony that defendant’s car was then being driven between twenty and twenty-five miles an hour.

Defendant’s version was that she noticed the plaintiff approaching and then stopping at this point on the crossing when she, the defendant, was some four or five car lengths to the east; that her car was not exceeding fifteen miles an hour; that the horn was sounded; and that just as the car was about to pass, the plaintiff stepped suddenly out into its path and was struck by the right front portion of the car. The car stopped at about the center of the intersection.

From a consideration of the conflicting testimony as to how this accident occurred we are satisfied that the issue of fact as to whether plaintiff was negligent at the time was one proper for solution by the jury and trial court, and their conclusion on that subject cannot now be disturbed.

The jury found by their answers to separate questions 2, 3, and 4, three several ways in which defendant was negligent at the time. Question 5, the one now criticised, provided that it was to be answered if either of said numbers 2, 3, or 4 was answered Yes, and further read: “Was the failure of the defendant ... to exercise ordinary care in such respect the proximate cause of the injuries to the plaintiff? ”

The objection to the form of this question is undoubtedly well taken, for such form left it uncertain as to which of the three grounds of found negligence was, in the opinion of the requisite number of jurors, a or the “proximate cause.” It is the better practice to follow the method suggested in the case of Berrafato v. Exner, 194 Wis. 149, 216 N. W. 165. The record, however, discloses that no objection Was interposed by defendant on the trial to its form, or any request made that a separate question as to proximate cause should be applied as to each one of the elements of negligence so separately found. Nor in the defendant’s motions after verdict and for a new trial does any such objection appear, although one of the requests was that the answer to said question 5 be changed from Yes to No.

The objection to the form of said question 5 being raised for the first time here, and when, as here, from the con-si deration of the record, we cannot say that justice was not done, the result ought not and cannot, for such ground, be now changed.

Plaintiff, when brought to the hospital, had a large wound six by two and one-half inches at the crest of the right hip bone and which leaves a permanent scar. The wound was ground full of dirt and gravel. A portion of that hip bone was dragged off and cannot be restored, and it appears that the spine is slightly tipped, and although there is no resulting limp there is a slight tipping of the body when the plaintiff stands. There were a number of contusions and a scar on the right knee. She was in the hospital sixteen days and lost twenty-six days from school and was unable from then on to keep up the full amount of required work, and appears to have lost weight. There is testimony of pain, nervousness, exhaustion, and loss of appetite.

The physicians called by both plaintiff and defendant, when questioned as to what extent, if any, the injuries would be permanent, were practically agreed that no definite answer could be then made in that regard without at least having the aid of an X-ray picture. None such was offered in evidence or appears to have been made. We must-therefore hold that the plaintiff has not met the burden as to the proof required in order to warrant the awarding of damages to any considerable amount on such an element as substantial permanent injury, an element that was, however, referred to the jury by the court’s specific instruction.

We cannot avoid the conclusion that in assessing the damages at $3,583 there must have been included by the jury a considerable amount for what they supposed would be permanent injurious results from this accident, and for that reason the defendant’s objection to the verdict on the ground of its being excessive must be sustained.

Rather, however, than to require the parties to be at the expense and delay of a new trial, we feel that the ends of justice will be properly served by permitting the plaintiff, within thirty days of the return of the record to the court below, to there file a consent to a reduction of damages to the sum of $2,500, with costs and disbursements as before, and in default of such being done, then defendant’s motion for a new trial must be granted.

By the Court. — Judgment modified by permitting a reduction of damages to $2,500, otherwise a new trial, and as so modified is affirmed.