Heer v. Warren-Scharf Asphalt Paving Co.

Dodge, J. The first assignment of error argued is upon the refusal of* the court to hold, upon one or other of defendant’s motions, that the evidence conclusively established contributory negligence in the plaintiff, and acquitted the defendant of negligence.- Much of the discussion and citation of authority is addressed to situations or conduct which possibly the evidence tended to establish, but which are negatived by the verdict of the jury upon conflicting evidence. We have no doubt that, while certain of the specific findings are controverted by the appellant, the verdict thereon is sustained by the evidence, namely, that the roller was not in course of operation in rolling the street at the time that the plaintiff sought to pass it, but had ceased such work, and was standing stationary outside of the limits of the driveway; that while so standing it was not negligence, in law, to attempt to drive past it; and that (what is specially controverted) the machine was started from a condition of rest and quietude into motion at the moment most likely to frighten a horse near it, namely, when it was slightly behind him. From these facts we are constrained to hold that it cannot be said, as matter of law, that it was not negligent to unexpectedly start such an appliance when a passing horse was within thirty or forty feet of it; and this, too, without at all controverting the proposition that the use of such a roller upon the streets of a city is lawful, and that one who approaches it while in its ordinary employment of being moved back and forth would be presumed to accept the peril of his horse being frightened thereby. We are persuaded that the jury were not trespassing beyond the bounds of reasonable judgment in declaring that the sudden transmutation of such an appliance from stillness and silence into an approach toward a horse, with — 62 — the necessary accompaniment of noise and escaping steam, was calculated to frighten even a gentle horse, and that, under the duty which rests upon all men to so conduct themselves as not to place others in serious peril, it was negligence to cause this transmutation. We therefore reach the conclusion that no error was committed by the trial court in refusing to hold, as matter of law, either that the plaintiff was guilty of contributory negligence, or that the defendant was free from negligence. The most vigorously debated assignment of error is based upon the admission in evidence of the fact that the average annual profits of plaintiffs business for ten years before his injury had been about $1,500. The question is discussed by the appellant as if this fact had been proved and submitted to the jury as a measure of plaintiff’s damages. lie argues with much force and much authority that the net profits of a business involving capital include other items than the mere personal services of the owner, and that they are neither a safe nor a correct measure of the damage resulting to him from mere inability to render such services. 1 Sedgwick, Dam. § 181; 8 Am. & Eng. Ency. of Law (2d ed.) 654; Chapman v. Kirby, 49 Ill. 211; Kinney v. Crocker, 18 Wis. 74; Ripon v. Bittel, 30 Wis. 614, 618; Luck v. Ripon, 52 Wis. 196, 200, 8 N. W. 815; Bierbach v. Goodyear R. Co. 54 Wis. 208, 11 N. W. 514. This position may well be conceded, and we should have little doubt that submission to the jury of the profits of this business as the measure of either of plaintiff’s earning capacity, or of his damages from personal disablement, would have been erroneous. Examination of the record, however, fails to establish such fact or situation. The plaintiff, as descriptive of the physical and mental labor which he had been able to perform prior to his injury, testified that he conducted this business alone, but for trifling assistance from a boy; doing the buying, selling, etc.; working twelve to fourteen hours per day. lie then proceeded to de — 63 — scribe the character and magnitude of the business — specifying the articles dealt in, the manner of their purchase — and, having no books, testified that the average stock carried was about $2,000, the average annual sales about $7,000, and the average net profits about twenty per cent, of the sales, or $1,500. The court instructed the jury that the plaintiff could recover in addition to the usual items of expense of treatment, past and future suffering, etc., “the loss of earnings of the plaintiff which he has already suffered, and which you are reasonably certain he will suffer in the future.” This appellant concedes to be a correct abstract statement of the law. If further instructions were necessary or proper to guard against misapprehension by the jury of the effect of the evidence above mentioned, the appellant should have made request therefor, without which no error can be assigned upon their absence. The mere admission of the evidence is therefore the only debatable ground of complaint. The authorities — those cited by appellant as well as others — are substantially uniformly to the effect that, as a basis for the jury’s ^estimation of damages, evidence may be given to show fully the capacity of plaintiff to labor before his injury, and, if his work consisted in the management of a business, the character and magnitude thereof. Sedgwick, Dam. §§ 180, 181; 8 Am. & Eng. Ency. of Law (2d ed.) 653, 654; Phillips v. L. & S. W. R. Co. L. R. 5 C. P. Div. 280; Ehrgott v. New York, 96 N. Y. 264, 275; Thomas v. U. R. Co. 18 App. Div. 185, 45 N. Y. Supp. 920; Pennsylvania R. Co. v. Dale, 76 Pa. St. 47; Hanover R. Co. v. Coyle, 55 Pa. St. 396; Goodhart v. P. R. Co. 177 Pa. St. 1, 16, 35 Atl. 191; Wallace v. P. R. Co. 195 Pa. St. 127, 45 Atl. 685; Alabama G. S. R. Co. v. Yarbrough, 83 Ala. 238, 3 South. 447; Wallace v. W. N. C. R. Co. 104 N. C. 442, 10 S. E. 552; Rio Grande W. R. Co. v. Rubenstein, 5 Colo. App. 121, 38 Pac. 76; Ballou v. Farnum, 11 Allen, 73; Denver v. Sherret, 88 Fed. 226; Kinney v. Crocker, 18 Wis. 74; Ripon v. Bittel, 30 Wis. 614; Luck — 64 — v. Ripon, 52 Wis. 196, 8 N. W. 815. Many of these cases go-to the exact' proposition that, in thus describing such business, it is competent to piuve the magnitude of the profits therein— not that the jury is to allow any loss of such profits as damages,, but to consider them, with other elements, as descriptive of the amount and grade of the services of which the injured man was capable. When that is ascertained, the jurymen are to-apply their judgment and common knowledge in deciding-what money-earning capacity results from the ability to render such services. This, of course, they may do without the-aid of expert opinions. Blair v. M. & P. du C. R. Co. 20 Wis. 262, 264; Luessen v. Oshkosh E. L. & P. Co. 109 Wis. 94, 85 N. W. 124; Meyer v. Mil. E. R. & L. Co. 116 Wis. 336, 93 N. W. 6. When such money-earning capacity of the-plaintiff, sound, is ascertained, the jury are then ready to ascertain the extent of its impairment by the injury. As we read the record, in light of the rule that all reasonable presumption must be indulged against error (Edwards v. Smith, 48 Wis. 254, 3 N. W. 758), we find nothing to justify the-conclusion that the evidence went any further than is warranted by the rules above stated, namely, to prove the quality,, character, and amount of personal service which plaintiff did perform before the accident; thus distinguishing the case at bar from Bierbach v. Goodyear R. Co. 54 Wis. 208, 11 N. W. 514. True, the court stated, in overruling an objection to the average past profits, and evidently in response to an-argument of appellant’s counsel, that such evidence was admitted subject to the rule that other proof “must be brought in to make future profits a measure of damage. He may-have then expected that a claim for loss of prospective profits-as damages was going to be made, but none appears. Plaintiff made no attempt to prove that-the business was less profitable during some months that it continued to run, nor that it might not have run with equal profit thereafter, had plaintiff not decided to sell out. Again, when the case was sub-- — 65 — mitted to the jury, they were not authorized to allow any damage by reason of lost or diminished profits, but merely the loss of earnings of the plaintiff. They apparently did not adopt $1,500 per annum as a measure of his loss of earnings, for the $13,500 awarded would supply an annuity of only about $900 at plaintiff’s age when injured. We conclude that no error affirmatively appears in the admission of this evidence. These considerations render unnecessary any discussion of appellant’s contention that the prospective profits were left by the evidence too uncertain and conjectural. Since, as said above, no such profits were allowed as damages, inadequacy in their proof is not material.. Error is assigned upon admission of testimony that plaintiff’s horse was gentle, upon the ground — urged in this court for the first time — that the witness did not establish that it was the same horse. He said it was a horse owned by plaintiff in 1898. Plaintiff testified that the horse which ran away was the one owned by him for a year prior to October, 1898. This was obviously deemed by the court below to establish identity sufficiently to enable the witness to testify. Any doubt on that subject could have been momentarily cleared up, had appellant suggested it by his objection. The error is not, well assigned. ' We cannot say that the $8,000 damages as finally allowed are excessive. The plaintiff, when injured, was in his prime — forty-five years of age — with expectancy of life twenty and one half or twenty-four and one half years, according to different tables. His injuries involved great suffering for several months, and left him a hopeless cripple, condemned to crutches for life. The degree of such disablement was largely evidenced by his own appearance, of which jury and trial judge had advantage. The amount awarded, without deducting that allowed for expenses and suffering, would, at present rates, purchase an annuity of about $570. — 66 — We cannot say that this would greatly or at all exceed the impairment of his earning capacity, as the jury and trial judge might have believed it to be from the evidence before them. By {he Oourt. — Judgment affirmed.