McNamara v. Village of Clintonville

Cassoday, J. Upon principles too well established by this court to require reiteration, the question whether the sidewalk was defective at the^ place of the injury was for the jury, and not for the court. Kaples v. Orth, 61 Wis. 531; Hill v. Fond du Lac, 56 Wis. 246; Wright v. Fort Howard, 60 Wis. 119; Kenworthy v. Ironton, 41 Wis. 647; Kavanaugh v. Janesville, 24 Wis. 621; Cuthbert v. Appleton, 24 Wis. 383. The same is true with respect to the plaintiff’s alleged contributory negligence. Ibid. Such negligence, when not disclosed by the plaintiff’s testimony, is purely a matter of defense. Kelly v. C. & N. W. R’y Co. 60 Wis. 482; Wright v. Fort Howard, 60 Wis. 125; Hoth v. Peters, 55 Wis. 405; Randall v. N. W. Tel. Co. 54 Wis. 147. Here, the court went so far as to indicate that the burden of proving the absence of contributory negligence was on the plaintiff. There is no ground for the defendant’s exception, to the submission of these questions to the jury, nor to the manner in which they were submitted. Exception is taken because the court refused to charge, — 210 — in effect, that during the time the plaintiff had no diploma he could not recover “for any loss of service” which he had sustained as a practicing physician. Under the statute the plaintiff could not recover compensation for such services rendered during that period; nor could he, during that period, testify as such expert. Sec. 1436, R. S. But neither of those questions is here involved. The statute did not undertake to make the business or service unlawful, nor to prohibit or punish the reception of voluntary payments for such services. Luck v. Ripon, 52 Wis. 201. The law in this respect has not been changed by the act to prevent quacks from deceiving the people by assuming a professional title. Ch. 256, Laws of 1881; ch. 40, Laws of 1882. Any loss sustained through inability to continue a lucrative professional practice may be considered in estimating such damages. Phillips v. L. & S. W. R'y Co. L. R. 5 C. P. Div. 280; Ehrgott v. Mayor, 96 N. Y. 264. These things being so, the plaintiff was not precluded from recovering such damages as he had actually sustained, even though he had no diploma for a portion of the time he was so disabled, and hence the instruction was properly rejected. Luck v. Ripon, 52 Wis. 201. Exception is taken because the court charged the jury, in effect, that if they found for the plaintiff, then no deduction should be made from the damages sustained, by reason of his disability having been prolonged in consequence of a predisposition to inflammatory rheumatism, and because the court refused to charge, in effect, that the plaintiff could not recover if the injury was the result of the disease, and not the direct and proximate result of the defendant’s negligence. There is no evidence that would warrant the jury in finding that the disease interfered in the least with the plaintiff’s powers of locomotion, or in any way contributed to his stepping or falling from the sidewalk at the .time and place in question. The jury have found, in effect, that there was — 211 — no negligence on the part of the plaintiff contributing to the injury, and lienee that it was the direct and proximate result of the defendant’s negligence alone. The presence of the disease may have aggravated and prolonged the injury and correspondingly increased the damages. The jury were expressly authorized to include in their verdict such increased or additional damages, and we must assume that they did. "Was this error? Under the repeated decisions of this court, we must answer this question in the negative. Oliver v. La Valle, 36 Wis. 592; Stewart v. Ripon, 38 Wis. 584; Brown v. C., M. & St. P. R'y Co. 54 Wis. 342. In one of these cases the plaintiff was allowed to recover increased damages by reason of an organic tendency to scrofula in his system, and in each of the others by reason of a miscarriage in consequence of the injury. In the Brown Case the distinction was made between actions for tort, where the wrong-doer is held liable for all injuries naturally resulting directly from the wrongful act, though unforeseen, and actions for the breach of contract, where the damages are limited to such as “ arise naturally from such breach of contract itself, or from such breach committed under circumstances in the contemplation of both parties at the time of the contract,” as in Flick v. Wetherbee, 20 Wis. 392; Richardson v. Chynoweth, 26 Wis. 656; Candee v. W. U. Tel. Co. 34 Wis. 471; Walsh v. C., M. & St. P. R’y Co. 42 Wis. 23; Hill v. Chipman, 59 Wis. 218; Hadley v. Baxendale, 9 Exch. 341; Hobbs v. L. & S. W. R'y Co. L. R. 10 Q. B. Gas. 111; Horne v. Midland R'y Co. L. R. 8 C. P. Div. 131; Jones v. George, 48 Am. Rep. 280; Bagley v. Cleveland R. M. Co. 30 Alb. L. J. 490; S. C. 21 Fed. Rep. 159. The rule applicable to contracts thus quoted is taken from the opinion of the court in the recent case of Hamilton v. Magill, L. R. 12 Ir. 202, and is there said to be a more accurate statement than is found Hadley v. Baxendale. To the same effect are the notes to that case in Shirley’s Lead. — 212 — Cas. 227-230, and Harvey v. C. &. P. R. R. R. Co. 124 Mass. 425. See, also, the late case of McMahon v. Field, L. R. 7 Q. B. Div. 595, where the plaintiff recovered on contract for the injury to his horses, who caught cold from unnecessary exposure to the weather. In that case Hobbs v. L. & S. W. R'y Co. supra, is severely criticised and narrowly- limited, if not entirely overruled. The distinction taken in the Brown Gase has been recognized in several of the more recent cases, and in some of them that decision is expressly sanctioned. Baltimore C. P. R'y Co. v. Kemp, 30 Alb. L. J. 92; S. C. 61 Md. 74, 619; Cincinnati, H. & I. R. R. Co. v. Eaton, 94 Ind. 474; Ehrgott v. Mayor, 96 N. Y. 281; Tice v. Munn, 94 N. Y. 621; Murdock v. B. & A. R. R. Co. 133 Mass. 15; Beauchamp v. Saginaw M. Co. 50 Mich. 163; McMahon v. Field, L. R. 7 Q. B. Div. 591; and see Mr. Irving Browne’s notes, 47 Am. Rep. 381-387; 41 Am. Rep. 53-58. See, also, as bearing upon the question, Pittsburg, C. & St. L. R'y Co. v. Staley, 1 Am. Law J. (Ohio), 136; S. C. 30 Alb. L. J. 110; Lewis v. Flint & P. M. R'y Co. 19 N. W. Rep. 744. In actions on contracts of carriage it has often been held that a corporation or party could not by contract wholly exempt itself from all liability for injury inflicted by its own negligence. Richardson v. C. & N. W. R'y Co. 61 Wis. 596; Canfield v. B. & O. R. R. Co. 45 Am. Rep. 268; Sager v. P., S. & P. & E. R. R. Co. 50 Am. Dec. 659. In such cases the damages recoverable cannot be within the contemplation of the contract; for they are recovered in spite of it. In McMahon v. Field one of the judges went so far as to say that “ the parties never contemplate a breach, and the rule should rather be that the damage recoverable is such as is the natural and probable result of the breach of contract.” To the same effect is Ehrgott v. Mayor, 96 N. Y. 280. In this Rew York case the court say: “ When a party commits a tort resulting in a personal injury, he cannot foresee or contemplate the consequences of his tortious act. ... A — 213 — city may leave a street out of repair, and no one can anticipate the possible accidents which may happen, or the injuries which may be caused. . . . The true rule, broadly stated, is that a wrong-doer is liable for the damages which he causes by his misconduct.” 96 N. Y. 281. “ The general rule in tort,” says Mr. Sutherland (3 Suth. Dam. 714) “ is that the party who commits a trespass, or other wrongful act, is liable for all 'the direct injury resulting from such act, although such resulting injury could not have been contemplated as the probable result of the act done.” This is expressly sanctioned in the Maryland case cited, where a cancer was the intervening cause. It is a contradiction to say that parties contemplate — have in mind, things of which they are supposed to be unmindful. In the case cited from Indiana the court say a wider range of inquiry is permissible in actions for tort than for the simple breach of a contract. See Shirley’s notes, 329. In that case the court quotes approvingly the rule stated by Mr. Thompson, which is substantially the same rule quoted from Addison approvingly in the Maryland case, that “ whoever does a wrongful act is answerable for all the consequences that may ensue in therordinary and natural course of events, though such consequences be immediately and directly brought about by intervening causes, if such intervening causes were set in motion by the original wrong-doer.” Here the action is not on contract, but for a tort consisting of a breach of statutory duty. The defect in the walk is supposed to have been known to the officers of the municipality. The predisposition to inflammatory rheumatism was an intervening cause, but it was set in motion by the tortious act complained of. It is not likely that the officers of the village actually contemplated that the injury in question would result from the defect in the walk. They must have known, however, that all classes of people, infirm as well as firm, diseased as well as healthy, were liable to — 214 — travel upon the walk. Under ordinary circumstances the infirm and diseased would have no difficulty in passing over the walk without incurring injury. But the plaintiff, under the circumstances stated, as found by the jury, incurred the injury without any fault on his part. The mere fact that he was more susceptible to serious results from the injury by reason of the presence of disease, did not prevent him from recovering the damages he had actually sustained. By the Court.— The' judgment of the circuit court is affirmed.