Baermann v. Chicago & Milwaukee Electric Railway Co.

Barnes, J. 1. The appellant insists that there was no evidence to show that the defendant was operating the car in which plaintiff was riding immediately before she was injured. The proof was slight, but sufficient to make a ‘priman facie case. The admissions of the answer, taken in connection with the evidence on the trial, would, we think, warrant the jury in finding that the defendant owned the road on which the car was being operated. The evidence also showed or at least tended to show that the defendant’s name was on the car in which the plaintiff was riding’at the time she claims to have been hurt. The motorman on the car also testified that he was working for the defendant. No evidence was offered on the point by the defendant. The plaintiff offered sufficient evidence to make a prima facie case. 2. The appellant insists that it was denied the right to cross-examine the motorman who was called to testify as an adverse witness under the provisions of sec. 4068, Stats. No questions were asked, but defendant’s counsel stated that perhaps he ought to ask some questions to determine whether or not the motorman knew for whom he was working. An objection was made to any cross-examination and the court sustained it. This ruling is assigned as error. Assuming that the appellant properly raised the question, the ruling of the court was erroneous. In view of the matter covered by the direct examination, defendant had a perfect right to pursue the proposed cross-examination. Guse v. Power & M. M. Co. 151 Wis. 400, 139 N. W. 195. We do not think the error should be held to be prejudicial. The motorman was called as a witness by the defendant on the trial, but no questions238 were asked of him in reference to this matter. It was a very easy matter for the defendant to show beyond controversy that it did not operate the car in which plaintiff was riding, if such was the fact. The failure of the defendant to offer such proof is strongly suggestive of the conclusion that it was not forthcoming and that the objection is somewhat technical. Evidently reliance was not placed on the nonexistence of the fact claimed to exist, but on the apparent weakness of the plaintiff’s evidence to prove it. 3. It is claimed that the court erred in refusing to submit the following question to the jury: “Is plaintiff’s present physical condition of which she complains due to the accident ?” The submission of this question was unnecessary. The court charged the jury that the plaintiff was entitled to recover only such damages as it was reasonably certain the plaintiff had suffered “as a natural and probable consequence of the injury which she sustained.” This instruction very properly advised the jury that damages should not be assessed for physical infirmities which were not due to the injury. 4. The court instructed the jury that plaintiff was entitled to recover damages for the pain and suffering which she had undergone as a natural and probable consequence of the injury, and also for the pain and suffering “which you are satisfied from a preponderance of the evidence to a reasonable certainty she will sustain in the future by reason of such injury.” Exception is taken to the part of the instruction quoted, because, it is argued, there was no evidence in the case which would warrant the jury in assessing damages for future pain or suffering. According to the medical testimony as we understand it, the plaintiff’s condition at the time of the trial might be due to child-birth, to injuries received from a fall, or to other causes. There was some evidence given by the plaintiff herself which we think would warrant the jury in finding that she was still suffering from the fall. This being the case, the instruction was proper. [239] 5. Appellant further insists that the damages assessed are excessive. The jury awarded $2,000. The trial judge gave the plaintiff an option to remit $800 or take a new trial. She elected to take judgment for $1,200. The trial court heard and saw the plaintiff and the medical experts and was in a better position to pass on the question of damages than is this court. It made a substantial reduction, and we do not think the honest and conscientious conclusion of the trial judge should be disturbed. 6. It is urged that the finding that defendant was negligent was against the overwhelming weight of the testimony and should therefore be set aside. Three passengers and the motorman .and conductor testified .that plaintiff attempted to alight from the car while it was in motion. Plaintiff testi-fiéd that the car had stopped and suddenly started up while she was in the act of getting off. This evidence .was to some extent corroborated by that of her son who was with her and who was about eight years old at the time. There is nothing intrinsically incredible about the plaintiff’s evidence. It raised a jury question. We have the same situation that was before the court in Hardy v. Milwaukee St. R. Co. 89 Wis. 183, 61 N. W. 771, in which a verdict for the plaintiff was sustained. By the Court. — Judgment affirmed.