Belstner v. Town of Sumner

WiNsnow, O. J. The verdict in this case is amply sufficient to sustain the judgment. If the findings of the verdict [558] are sustained by sufficient evidence and there are no substantial errors in the charge of the court or the rulings and evidence, the judgment must be affirmed, unless, indeed, the damages be excessive. The appellant claims in substance that (1) there is no proof that the spinal meningitis resulted from the fall from the wagon; (2) that there was no actionable defect in the highway shown; (3) if there was a defect it had not existed long enough to charge the town officers with notice of its existence; (4) instructions on the subject of proximate cause were erroneously refused; (5) the deceased was guilty of contributory negligence; (6) the damages are excessive. It is not deemed profitable or necessary to enter into any discussion of the second, third, and fifth of these claims. Examination of the evidence shows very clearly that all of these questions were questions for the jury upon the evidence and that they were properly submitted, or at least without any substantial error. As to the first question the result is not so obvious, but we have come to the conclusion that the evidence was sufficient to carry the case to the jury. The fact that cerebro-spinal menibgitis sometimes results directly from trauma, or physical injury, seems to be well supported by the evidence of physicians. Whether it did so result in this case was a question which depended principally upon the opinions of the expert witnesses, and those opinions were necessarily founded upon hypothetical questions involving the history of the accident and of the condition of the patient prior to his calling a physician on Wednesday. There was, of course, a radical disagreement between the conclusions reached by the physicians, but two of them certainly gave evidence on the subject tending to support the conclusions of the jury. When it is remembered also that the illness of the deceased followed closely upon the injury with no apparent intervening cause, and that he had been up to that time in perfect health for [559] years, we think it clear tbat tbe evidence was sufficient to take tbe case to tbe jury. Complaint is made as to tbe form of tbe bypotbetical question put to- tbe. plaintiff’s medical witnesses, in tbat it stated as facts some particulars which tbe evidence did not substantiate. It must be admitted tbat tbe question was not entirely accurate. -We do not tbink, however, tbat tbe inaccuracy was of sufficient importance to be considered substantial and it is not considered necessary to state it in detail. Tbe subject of proximate cause was fairly covered by-the fourth question of tbe special verdict, and in charging the jury on this question tbe court gave tbe correct definition of proximate cause and went no further. Tbe defendant requested an instruction to tbe effect tbat if there were two proximate causes, one a defect in the road and the other want of ordinary care on tbe part of tbe deceased, “tbe plaintiff cannot recover.” This instruction was refused by tbe court and tbe defendant now complains of this refusal. Tbe ruling was correct. In ease of a special verdict, a general instruction touching tbe general question'of tbe right of recovery has no proper place in tbe charge. Johnson v. St. Paul & W. C. Co. 126 Wis. 492, 105 N. W. 1048. We tbink, however, tbe damages must be considered as excessive in view of tbe meagerness of tbe evidence as to tbe earning capacity of tbe deceased. Substantially tbe only facts proven bearing on tbe question were tbat tbe deceased was a strong, able-bodied man, forty-nine years of age, weighing 180 pounds, who bad always been in good health and could always earn good wages; tbat be bad been working before bis illness for some time at tbe shop of tbe Creamery Package Company at Fort Atkinson, running a machine; tbat be was a steady worker, was tbe sole means of support of bis wife, and tbat be bad no children. ' Tbe evidence fails to show bow much the deceased earned or could earn per diem, or whether there was any reasonable probability of his ac [560] cumulating property or doing more than furnishing bis wife tbe bare means of subsistence. We have no means of ascertaining what was meant by the words “good wages.” These words are relative, not absolute, and may mean much or little according to the viewpoint of the person who uses them. There is no hint in the evidence that the deceased at the age of forty-nine had been able to accumulate a dollar’s worth of property. The inference must naturally be that his daily wage cannot have been large, especially in view of the proof that he -was a steady worker. In the present case the sole beneficiary is his widow, and she had the right unquestionably to expect her support during the expectanOy of life of the deceased. In cannot be reasonably anticipated, however, in view of the evidence,' that this support would have been anything more than the mere necessaries of life in a very humble station. In view of this situation the damages seem to us to be plainly excessive. While we must reverse for this, we shall, as is our usual custom, allow the plaintiff to elect to take judgment for the smallest sum which in our judgment a fair and just jury would in all reasonable probability render on the evidence. That sum in this case is $3,000. By the Court.- — Judgment reversed, and action remanded for a new trial, unless the plaintiff within thirty days after the filing of the remittitur in the court below shall elect in writing to take judgment for $3,000 and costs, in which case the trial court is to render judgment for the plaintiff in accordance therewith. SibbecKER, J., dissents as to reduction of damages.