Kenyon v. City of Mondovi

WiNslow, J. 1. A motion for nonsuit was made in this case, and overruled, and error is assigned upon this ruling. Examination of the record satisfies us that the case was one for the jury. The plaintiff was walking along in a snowstorm which might well conceal the outlines of the hummock of ice, and his attention was at the time momentarily diverted by being accosted by a friend. Under such circumstances, we cannot say that the plaintiff was guilty of negligence, as matter of law, in not seeing and avoiding the ice. Wheeler v. Westport, 30 Wis. 392; Simonds v. Baraboo, 93 Wis. 40. 2. The physician who treated the plaintiff’s injured leg ■was asked certain questions as to statements said to have been made to him by the patient as to the previous condition of the leg and the circumstances of his fall. These questions were objected to as privileged communications, and the objections were sustained. We understand from the record,— though it is somewhat confused,— that the doctor stated that all these facts were necessary for him to know in order to enable him to treat the case intelligently. This brings it within the provisions of sec. 4075, E. S., and makes it a privileged communication. This court has recently held that in such case the privilege is that of the patient. Boyle v N. W. Mut. R. Asso. 95 Wis. 312. Hence there was no error in excluding the evidence. 3. Error is assigned upon the failure to submit certain [54] 'questions to the jury as a part of the special verdict. It is ■sufficient to say on this point that the special verdict fully ■covered all the issues in the case. 4. The court charged upon the question of damages as follows : “ And if you are satisfied from the evidence that the injury that the plaintiff has suffered is permanent in its nature, and will continue to affect his health and physical con■dition in the future, and cause him pain and suffering in the future, you should allow him, in addition, such sum as will reasonably compensate him for such pain and suffering and impairment of ability to earn a livelihood as he must suffer in the future.” It is claimed that this instruction was defective, in that it allowed the jury to find permanent damages upon supposition or conjecture, and that it violated the rule that permanent disability must be found to be reasonably certain before such damages can be allowed. We do not think the objection well taken. The court told the jury that, if they were “ satisfied ” from the evidence that the injury was permanent, they might assess damages for such pain and suffering and impairment of ability to earn a livelihood as he must •suffer in the future. If a jury are satisfied of the existence of a fact, it would seem that they must be reasonably certain ■of it. We see no defect in the instruction, and we think there was sufficient evidence to base it on. The court also charged that admissions of a party are .•sometimes rather unreliable and calculated to mislead, and •need to be scrutinized with care. This is objected to as unwarranted. If it stood alone, it might be misleading; but it was followed by further remarks to the effect that admissions deliberately made and clearly proven are entitled to -considerable weight, and may be entitled to a great deal of weight, and that the degree of weight was a question for the jury. Certainly, with these qualifications, there was no error here. 5. A number of instructions were asked and refused. It [55] •seems hardly necessary to insert them here. They were generally correct, and were generally, also, included in the ■charge of the court, in somewhat different form and wording, but sufficiently expressing the idea to be conveyed. Many verbal criticisms are made of the charge, but we have ■discovered nothing of sufficient consequence to justify reversal. The case seems to have been fairly tried, and submitted without prejudicial error. By the Oowrt.— Judgment affirmed.