4 N.W. 658 (Wis. 1880), Quaife v. Chicago & Northwestern Railway Company

Citation:4 N.W. 658, 48 Wis. 513
Opinion Judge:TAYLOR, J.
Attorney:F. J. Lamb, for the appellant: For the respondents, there was a brief by Lusk & Perry, and oral argument by Mr. Lusk.
Judge Panel:DAVID TAYLOR, J.
Case Date:February 24, 1880
Court:Supreme Court of Wisconsin

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4 N.W. 658 (Wis. 1880)

48 Wis. 513

QUAIFE and wife



Supreme Court of Wisconsin

February 24, 1880

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.


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.




[48 Wis. 519] The case is thus stated by Mr. Justice TAYLOR:

"This action was brought to recover damages on account of injuries alleged to have been sustained by the plaintiffs by reason of the negligence of the defendant in not keeping a sufficient platform at Glendale, in this state, a station on its road at which passengers were accustomed to get on and off its trains.

"The facts shown upon the trial were, that the defendant had constructed a platform at Glendale, about one hundred and five feet long and about six feet wide, the north end of which was about three feet above the ground, with no rail or other guard, and with no stationary or other light kept thereon at night when the passenger train stopped to receive and discharge passengers at that place; the only lights being those carried in the hands of the station agent, conductor and brakemen. On the 29th of March, 1878, the passenger train going south stopped at Glendale to discharge and receive passengers in the night-time. The plaintiffs were at Glendale, and desired to take the train for Elroy. In drawing up to the platform, the train was stopped so that the forward end of the ladies' car did not come up to the north end of the platform by about two feet. The plaintiffs, in approaching the train to get on board, started for the forward end of the ladies' car; and Mrs. Quaife, being a little in advance, in attempting to get upon the steps of such car, stepped off the end of the platform and fell the distance of three feet or more, and received the injuries complained of.

"On the part of the defendant it is claimed that the evidence shows that a brakeman stood on the platform near the forward end of the ladies' car, with a lamp in his hand, and

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spoke to Mrs. Quaife as she approached the cars, and told her there was not room to get on there, and to get on to the other step--that is, the step at the rear end of the smoking car, immediately in front of the ladies' car; that he told her that was the end of the platform; that she said "Yes," and stopped for a moment; that the brakeman stepped around to the steps of the smoking car; that Mrs. Quaife stopped and talked with some one; and that when the conductor called "all aboard," she started and walked off the end of the platform. The evidence shows that quite a large number of persons were on the platform when the train stopped; that the train made a very short stop; and that there was considerable hurrying to get aboard the train, and the night was dark. Mr. Quaife disputes the statement of the brakeman, and says that the brakeman stood on the front end of the ladies' car, and not on the platform, and thinks his lamp was standing on the platform of the car, and that Mrs. Quaife started for the steps of the ladies' car when she fell off the platform. Mrs. Quaife swears she did not notice the brakeman at all, and did not hear him say anything to her, and says she saw the steps of the ladies' car, and started to get on them, and stepped off the end of the platform in attempting to do so.

"There was considerable evidence given as to the severity of the injuries received by Mrs. Quaife. The jury returned a verdict in favor of the plaintiffs for $ 1,800. The defendant's counsel requested the court to give the following instructions to the jury, which were refused, and exception was duly taken, and such refusal is alleged as error in this court.

"'1. If the fact of negligence of the defendant is doubtful, the defendant is entitled to the verdict.

"'2. It is for the plaintiffs to make out their case, and show that this accident arose from the negligence of the defendant's servants; and if the evidence leaves this point in doubt, they must find for the defendant.'

"The learned circuit judge instructed the jury upon the point presented by these requests, as follows:

"'It is claimed upon the part of the plaintiffs, that the defendant was negligent in not having a reasonably safe platform, in not having the platform sufficiently lighted, and in not having some person stationed at the point where this accident occurred, to warn persons and prevent their walking off the platform.

"'It will be the duty of the jury to determine, from all the

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testimony in the case, whether the defendant was negligent in these respects or either of them. It is the duty of the defendant to have its platform reasonably sufficient and safe in all respects to be used by such persons as may have lawful occasion to use it. It is not necessary that it should be perfectly and absolutely safe;...

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