Quaife v. Chicago & Northwestern Railway Company
Decision Date | 24 February 1880 |
Citation | 4 N.W. 658,48 Wis. 513 |
Parties | QUAIFE and wife v. THE CHICAGO & NORTHWESTERN RAILWAY COMPANY |
Court | Wisconsin Supreme Court |
Argued February 6, 1880
APPEAL from the Circuit Court for Monroe County.
The plaintiffs had a verdict for $ 1,800 damages; a motion to set it aside on the grounds that it was contrary to the evidence and that it was excessive, "and for other errors apparent on the record," was denied; and, from a judgment in accordance with the verdict, defendant appealed.
Affirmed.
F. J Lamb, for the appellant:
1. The plaintiffs must prove negligence on defendant's part, which caused the injury without fault on their own part. If the fact of negligence be doubtful, or the evidence would justify an inference consistent with the absence as well as with the existence of negligence, the verdict should be for the defendant; and the refusal of the court so to charge was error. Cotton v. Wood, 8 C. B. (N. S.), 568; 29 L. J., C. P., 333; Daniel v. Railway Co., L. R., 3 C. P., 216, 222, 591; 37 L. J., C. P., 146, 280; Baulec v. Railroad Co., 59 N.Y. 356. 2. In any view of the case, the damages were excessive. There were no items of expense or loss proven, and by far the larger share of the award is for pain and suffering. Upon this point the testimony of the plaintiff as to the fact of her suffering is contradicted by the entire testimony of the medical experts, on both sides, all of whom swear that there was absolutely nothing wrong in the physical condition of the limb, and nothing which they could suggest as the cause of such pain. The jury have arbitrarily disregarded the proofs, and allowed their sympathies to blind their eyes to the facts. This court has frequently interposed in such cases, and if it could not, a trial would be a mere farce. Goodno v. Oshkosh, 28 Wis. 300; Spicer v. Railway Co., 29 id., 580; Duffy v. Railway Co., 34 id., 188; Patten v. Railway Co., 32 id., 524; Neanow v. Uttech, 46 id., 581.
William F. Vilas, on the same side, argued that the question put to one of the physicians, admitted under defendant's objection, as to his ability to determine whether plaintiff suffered any pain, judging from his examination including what she said, really called on the witness to pronounce upon the credibility of her mere assertion, as against the result of the physical examination; and that it was for the jury, not the witnesses, to say how much her testimony was worth in comparison with the array of facts against her. Wood v. Railway Co., 40 Wis. 582; Griffin v. Town of Willow, 43 id., 509; Churchill v. Price, 44 id., 542. He also contended that the question was not properly within the limits of a medical opinion. A physician may testify whether a certain disorder which he has examined into would cause pain, and its probable character and degree. He might also, perhaps, give an opinion as to what affection or injury of the body, the existence of a certain described sensation would indicate. But when he can find no disorder which in his opinion is adequate to cause physical distress, he has no better means of determining in favor of an assertion of pain by the patient than any other person. Expert witnesses can only be asked to deliver an opinion upon hypothetical questions which represent what may be fairly claimed to have been proven as facts, leaving entirely to the jury the ascertainment of the facts. Dexter v. Hall, 15 Wall., 9; Reynolds v. Robinson, 64 N.Y. 589; Woodbury v. Obear, 7 Gray 467; 1 Greenl. Ev., § 440; 1 Wharton on Ev., § 452; Luning v. State, 2 Pin., 220; Wright v. Hardy, 22 Wis. 354; Eaton v. Woolly, 28 id., 628. It was also error to permit the plaintiffs, in direct examination of Dr. Beebe, and when he had shown his inability to testify to any fact in their favor, to ask him whether there might not have been A fracture of the neck of the femur, which he had not been able to discover. This was in effect deciding that the jury might range the possibilities, in considering what ailed the plaintiff; and permitting them to endeavor to account for the pain on the theory of a fracture of the femur. The answer could be but a mere speculation, and its tendency was to lead away the minds of the jurors from the ascertainment of facts, and the just deductions to be drawn from facts legitimately proven. Such opinions are universally condemned in the books as inadmissible. Kennedy v. The People, 39 N.Y. 255 et seq.
For the respondents, there was a brief by Lusk & Perry, and oral argument by Mr. Lusk. They contended that it was the duty of the jury to find for the party in whose favor the evidence, in their judgment, preponderated, although it was not free from reasonable doubt; and that the instruction on that point asked by defendant was properly refused (3 Greenl. Ev., p. 28, sec. 29; Blaeser v. Insurance Co., 37 Wis. 35); and that the verdict should not be set aside as excessive unless it bore marks of passion, prejudice, partiality or corruption. Bass v. Railway Co., 42 Wis. 672; Birchard v. Booth, 4 id., 78. They also contended, on the evidence, that the damages awarded were not excessive, nor even compensatory.
The case is thus stated by Mr. Justice TAYLOR:
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Hartwig v. Chicago & Northwestern Railway Company
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