Bratonja v. Wisconsin Ice & Coal Co.

Owen, J. We should find no little difficulty in sustaining the verdict of the jury in the matter of the negligence of the defendant’s driver if in order to do so it were necessary to determine that the collision occurred in the manner detailed by plaintiff’s witnesses. In view of the fact, however, that under the statute (sec. 1636 — 49) the automobile had the right of way over defendant’s ice wagon at the place of intersection, we cannot disturb the finding of the jury convicting defendant’s driver of a want of ordinary care in the management of the team and wagon at and just prior to- the time of the collision. The automobile had the right of way over the ice wagon. In the exercise of ordinary care the driver of the ice wagon should have so managed his team as to have prevented the collision. This he failed to do, and he cannot be exonerated from negligent conduct as a matter of law. There is no question of the plaintiff’s contributory negligence in the case, so that defendant’s liability must be considered as established. It is urged that the damages awarded by the jury are excessive. The evidence in behalf of the plaintiff tends to show, that she sustained a transverse fracture of the ninth and tenth ribs- and a longitudinal fracture of the eleventh rib, all on the left side. She was in the hospital about ten days, at the end of which time she was taken home, where [208] she was confined to her bed for about two months. It was about four months from the time she was injured until she was able to perform her usual household duties. At the time of the trial she experienced a pain in her left side when she raised her left arm, was nervous and subject to headaches. She could not wash or scrub. Dr. Irving H. Fowle, an expert witness of no little experience, testified that he had examined her a day or two- before the trial and found a pulse of 102 and a temperature of 99.6. He attributed the temperature to an infection, but did not locate the seat of the infection. He expressed the opinion that there was some adhesion of the lung to the pleura which resulted from the lacerations of the tissues. He further expressed the opinion that the pain experienced by the plaintiff on her left side will continue, as the adhesions are permanent. The evidence tending to establish substantial injuries of a permanent nature is most meager and unsatisfactory and falls far short of establishing that fact to a reasonable certainty. The damages are excessive and should be reduced to $1,500. By the Court. — The judgment is modified by reducing the amount of damages from $3,500 to $1,500 and, as so modified, is affirmed.