Mehegan v. Faber

Babwes, J. The defendant urges the following contentions in support of a reversal of the judgment: (1) The verdict does not find that defendant's negligence was the proximate cause of the injury. (2) The jury having found an independent -intervening cause, to wit, the negligence of Gertzke, there can be no recovery against the defendant. (3) The court erred in excluding certain evidence offered. (4) The damages awarded are excessive. 1. Under the circumstances of this case, the substitution of the words "a proximate cause” for "the proximate cause,” in questions 2 and 4, could have no possible effect on the jury. If defendant was negligent in running his car where he did (and it is conceded that the jury was justified in so finding), there can be no doubt that such negligence was the proximate cause of the injury. There might be another proximate cause, but this one was established beyond controversy. 2. Under the findings, of the jury in this case, two persons were guilty of distinct acts of negligence which resulted in the death of the deceased. The fact that Gertzke might be responsible for the killing would not relieve the defendant from liability if he also was responsible for it. An action would lie against either. Atkinson v. Goodrich T. Co. 60 Wis. 141, 18 N. W. 764; Haley v. Jump River L. Co. 81 Wis. 412, 51 N. W. 321, 956; Olson v. Phoenix Mfg. Co. 103 Wis. 337, 79 N. W. 409; Sherman v. Menominee River L. Co. 72 Wis. 122, 39 N. W. 365; Grant v. Keystone L. Co. 119 Wis. 229, 96 N. W. 535; McClure v. Sparta, 84 Wis. 269, 54 N. W. 337; Papworth v. Milwaukee, 64 Wis. 389, 25 N. W. 431; Winchel v. Goodyear, 126 Wis. 271, 105 N. W. 824; Lower v. Whitney Bros. Co. 147 Wis. 41, 132 [648] N. W. 588; Gorsegner v. Burnham, 142 Wis. 486, 125 N. W. 914; Cook v. M., St. P. & S. S. M. R. Co. 98 Wis. 624, 638, 74 N. W. 561. In the latter case it is pointed out when an independent intervening cause will defeat recovery. The present case does not fall within such class. 3. Deceased was a patient at the Wisconsin Tuberculosis Sanitarium for a time. He was examined by Dr. Coon, the superintendent of the institution, when he was admitted and from time to time thereafter, and a record was made of such examinations by the doctor. Defendant sought to introduce this record, but the court excluded it. Dr. Coon testified that the record contained the information that he obtained from the patient for the purpose of treating him as a physician. It is quite obvious that the record made by the doctor for this purpose was properly ruled out under sec. 4075, Stats. 4. It is argued that the deceased was a consumptive, having but a short time to live, and unable to contribute to the support of his family, and that the damages are clearly excessive. There was evidence tending to show that the deceased did not have tuberculosis and that he was slowly recovering from a protracted sickness at the time he was killed. The trial court expressed the opinion that the verdict was eminently just on the subject of damages, and it should not be disturbed by this court. By the Court. — Judgment affirmed.