Summary
In Kalish v. Milwaukee S.T. Corp. (1955), 268 Wis. 492, 497, 67 N.W.2d 868, we held that duplication might result if separate damage questions were submitted, one covering wage loss and the other disability. Wis J I — Civil, Part I, 1755, which is an instruction that refers to past pain and suffering to date of trial, does not include the word "disability."
Summary of this case from Sharp v. Milwaukee S. T. Corp.Opinion
December 9, 1954 —
January 11, 1955.
APPEAL from a judgment of the civil court of Milwaukee county: JOHN H. WESSEL, Judge. Reversed, with directions to grant a new trial on the issue of damages.
For the plaintiff there were briefs and oral argument by Walter J. Steininger, attorney, and Thomas P. Maroney of counsel, both of Milwaukee.
For the defendant there were briefs by Kivett Kasdorf, attorneys, and Clifford C. Kasdorf and Alan M. Clack of counsel, all of Milwaukee, and oral argument by Mr. Clifford C. Kasdorf and Mr. Clack.
Plaintiff, a passenger on defendant's streetcar, was injured, July 21, 1953, when the streetcar collided with defendant's trackless trolley bus. A jury found the motorman causally negligent in his management and control of the streetcar and awarded damages. On motions after verdict the trial court concluded that there was no credible evidence to sustain the jury's finding of negligence and therefore it reversed that answer. Judgment dismissing the complaint was then granted on the verdict as so changed.
The motorman was the only witness to testify concerning the operation of the streetcar. He testified that when he was proceeding east on Juneau avenue in Milwaukee, some five or six blocks before the collision, a heavy mist or light drizzle began which made the streetcar rails wet and slippery. Under such conditions it is necessary to apply the brakes slightly at intervals of 25 or 35 feet so as to keep the car under control. He did this and had no difficulty in stopping within 25 or 30 feet at the various street intersections. His route ran south from the corner of Juneau avenue and Third street. When he made this turn he saw a trackless trolley bus ahead of him going south on Third street. When the streetcar reached the north end of the block between Highland avenue and State street the motorman saw the bus was stopped at the south end of that block at the safety island and within a foot or two of the crosswalk across Third street. Mader's restaurant is at the north end of this block. The street is level.
Continuing his testimony, the motorman said that when the streetcar was in front of Mader's he applied his brakes, using sand to increase the holding power but the car slid forward without reduction of speed. He released the brakes momentarily and then tried them again without effect. His next trial of brakes was when he was 25 or 30 feet away from the bus and still sliding. Then he put on his emergency brakes which lock the car's eight wheels and also release sand. These brakes were effective but the distance was too short and the car was still moving slowly when it ran into the rear end of the bus. Plaintiff was standing on the front platform of the streetcar. He was thrown off balance and fell down and his back was injured.
After the accident the motorman paced off the distance between the spot where he first applied his brakes, as marked by the sand released from the car when it was in front of Mader's, and the point where he struck the bus. He testified this was 100 to 125 feet, closer to 100. Plaintiff called a witness who testified that he had measured the distance from the south end of Mader's restaurant to the north end of the safety island and it was 194 feet. The island is 75 feet long, to accommodate two buses, and the bus which was struck was at the south end of the island.
After the collision the streetcar completed its daily run without further braking difficulty, and there had been no such difficulty before the incident in question.
Additional facts will be stated in the opinion.
The trial court referred to the principle that the jury's answers to questions of fact are not to be disturbed if there is credible evidence to support them. Strnad v. Cooperative Insurance Mutual (1949), 256 Wis. 261, 40 N.W.2d 552. And a court must view the evidence in the light most favorable in support of the verdict. Bovi v. Mellor (1948), 253 Wis. 458, 34 N.W.2d 780. Nevertheless, the trial court failed to discover evidence upon which the finding of negligent operation could be sustained and in this, we think, it erred. The jury could believe the testimony of the witness who by measurement found that the distance from the south end of Mader's restaurant to the north end of the safety island was 194 feet and to the south end of the safety island an additional 75 feet. Allowing for the length of the bus, it could believe that the motorman discovered his car was not under control when it was more than 200 feet north of the rear end of the bus and still he did not apply his emergency brake until, in his own version, he was 25 feet away from it.
A common carrier of passengers, such as a streetcar company, owes to its patrons the highest duty of care to avoid injury to them by collisions. Heucke v. Milwaukee City R. Co. (1887), 69 Wis. 401, 34 N.W. 243.
"The degree of care required of a common carrier is not capable of a precise formulation, applicable to all situations that may arise. In general, however, carriers of passengers are required to exercise the highest degree of care, vigilance, and precaution for the safety of those it undertakes to transport, and are liable for the slightest negligence." 10 Am. Jur., Carriers, p. 163, sec. 1245.
On this evidence, the motorman's delay in resorting to the emergency brake until even that was used too late, presents a jury question of his care or negligence in the operation of the streetcar. The jury's answer may not be disturbed. The judgment of the trial court dismissing plaintiff's action therefore must be reversed.
Defendant, prudently foreseeing such a result and believing that there were errors in the jury's computation of damages, has appealed from the denial by the trial court of its motions after verdict which demanded the reduction or elimination of certain items of damage.
The damage questions of the special verdict were the following:
At what sum do you assess his damages in the following items:
(a) Medical expense. Answer ...... $ 299.75 (b) Loss of wages. Answer ........ $1,000.00 (c) Pain and suffering and disability, if any. Answer ............... $3,500.00 The jury found plaintiff's medical expenses were $299.75. This is the sum of the hospital bill of $219.75 and the $80 bill of Dr. Ansfield on whom the plaintiff called after he was discharged from the hospital. The hospital record shows that when plaintiff was admitted on July 22, 1953, he was suffering from a sprain of the sacroiliac joint, from bronchitis, and from osteoarthritis of the lumbar spine. Defendant contends that plaintiff was treated for all three ailments and it should not be compelled to pay for treatment of the second and third conditions, which had no connection with the accident. We have reviewed the record and find no treatment for the bronchitis or arthritis except a little cough medicine for the former. No doubt the bed rest was good for the bronchitis but he was in bed because of the sprain and was discharged when his back was sufficiently improved to permit him to be up and about. The cough syrup certainly comes under the rule of de minimis. We find no treatment for arthritis, and the patient testified that before the accident his back did not pain him. Expert evidence is here that such a painless form of arthritis is known and we must conclude that the entire hospital bill is attributable to the streetcar collision.The remainder of the jury's allowance for medical expense is $80 which is the bill of Dr. Ansfield, an orthopedic specialist. Plaintiff left the hospital on August 1, 1953, but continued to receive outpatient treatment at the county dispensary. On August 11, 1953, he called on Dr. Ansfield and called again on May 4, 1954, two days before the trial, at which the doctor testified as plaintiff's expert. At his first call Dr. Ansfield gave him a thorough physical examination and detailed this in a written report, stating his diagnosis and recommending treatment, which report the doctor sent to plaintiff's attorney. Dr. Ansfield did not treat plaintiff then or later. We think it is clear that plaintiff was not the doctor's patient but the services were rendered in preparation for trial. We are impressed with the thoroughness of the physical examination and the doctor's fairness and objectivity as an expert witness, but his bill falls into the category of legal rather than medical expense. The jury's allowance for the latter must be reduced to the hospital charges alone, $219.75.
The court instructed the jury that it could assess damages for pain and suffering from the date of the accident to the date of the trial and for future permanent disability, pain and suffering. There was no instruction concerning loss of wages. Defendant objected that there was a duplication between the loss of wages in (b) and the disability in (c) and we must agree that we are unable to determine what items the jury intended its answers to cover. The qualifying phrase "if any" makes it uncertain if any part of the allowance of $3,500 for question (c) is in compensation of disability and it is likewise uncertain whether such disability as the jury may have meant to recognize is inability to work for pay, and to a greater or less extent included in (b). The court's instructions give us no help and we are compelled to regard the verdict, as submitted to the jury, confusing and misleading. Therefore, we consider the interests of justice require a new trial on the issue of damages.
By the Court. — Judgment reversed, and cause remanded with directions to reinstate the answers of the jury respecting causal negligence, to conduct a new trial on the question of damages, and to enter judgment for plaintiff for damages in the amount so determined, and for such other proceedings as are not inconsistent with this opinion. On such trial the question of medical expense shall be answered by the court in the amount of $219.75.