Bell v. Milwaukee Elec. Ry. & Light Co.

• Decision Date: 27 May 1919
• Citation: 172 N.W. 791,169 Wis. 408
• Parties: BELL v. MILWAUKEE ELECTRIC RY. & LIGHT CO.
• Court: Wisconsin Supreme Court

169 Wis. 408

172 N.W. 791

BELL

v.MILWAUKEE ELECTRIC RY. & LIGHT CO.

Supreme Court of Wisconsin.

May 27, 1919.

Appeal from Circuit Court, Milwaukee County; Oscar M. Fritz, Judge.

Action by Joseph A. Bell against the Milwaukee Electric Ry. & Light Company. Special verdict for plaintiff, and judgment thereon, and defendant appeals. Affirmed.

Action to recover damages for personal injuries. January 21, 1917, plaintiff was a passenger on one of defendant's cars, and the complaint alleged that when the car reached the Mason-Jackson crossing some of defendant's trolley wires, heavily charged with electricity, were then defective, broken, hanging down, and out of repair, and were negligently permitted to come in contact with the car; that by reason of said contact, and the sudden and violent turning on of the electric current by the motorman, and the defective condition of the electrical appliances of the car, and the overloading of the electric light wires and electrical appliances of the car, the current breaker, electric light lamps or bulbs, and other electrical appliances were caused to explode with great force and violence, causing particles and pieces therefrom to fly with great force throughout the car to plaintiff's face and eyes; that by reason of the striking of said particles and glass into plaintiff's eyes, and the flash accompanying the explosion, both his eyes were injured, so that he became entirely blind in the left eye and partially blind in his right eye, and that he believed said condition to be permanent. He asked damages in the sum of $20,250. At the trial he was allowed, over defendant's objection, to amend the amount asked for damages to $50,000, and before the close of the trial plaintiff claimed he was permanently blind in both eyes. The answer put in issue all allegations as to defendant's negligence and the amount of damages sustained by the plaintiff.

The jury found (1) that plaintiff was injured by an electrical explosion or flash; (2) that the car on which he was a passenger came in contact with a broken overhead wire, so as to conduct electric current in such a manner as to cause such explosion or flash; (3) that defendant was guilty of negligence in permitting the car to come in contact with the wire; (4) that such negligence was the proximate cause of plaintiff's injury; and (5) that he sustained damages in the sum of $25,000.

Judgment in favor of plaintiff was entered upon the special verdict September 5, 1918, and on the 20th of the same month defendant appealed, and the record reached this court October 9th. On October 30th the defendant made a motion in this court, returnable November 8th, to remit the record to the trial court, with directions to entertain a motion to set aside the verdict and judgment and grant a new trial, because of newly discovered evidence tending to show plaintiff was not totally blind. The motion was denied December 3, 1918. Defendant then made a motion in this court, returnable January 7, 1919, to dismiss the appeal for the same purpose as desired in its former motion, upon the same affidavits, which motion was heard and denied on the same day.

Eschweiler, J., dissenting.Van Dyke, Shaw, Muskat & Van Dyke, of Milwaukee, for appellant.

Henry Mahoney, of Milwaukee (W. L. Gold and W. H. Timlin, both of Milwaukee, of counsel), for respondent.

VINJE, J. (after stating the facts as above).

Owing to the claim of such serious injury to plaintiff's eyes and the large amount of damages asked by him, the case was necessarily tried very thoroughly. The result is a printed case of over 600 pages, more than 200 of which are devoted to the medical testimony of the nine doctors that were called, five by the plaintiff and four by the defendant. This statement is made not, by way of criticism, but as a reason why no detailed statement of the evidence bearing upon the merits will be included in the opinion. There is some conflict in the evidence as to the cause of the injury, and a sharp conflict as to its degree; plaintiff claiming total blindness in both eyes, and defendant only partially impaired vision, at least so far as the right eye is concerned.

[1] The evidence has been carefully examined by every member of the court, with the result that we cannot say it so preponderates against the finding of total blindness in both eyes that it should be disturbed. Claim is made that the jury did not give due weight to the expert evidence of defendant, and especially to the result of its medical tests. Were we triers of the fact, we might come to a different conclusion on the subject; but the correctness of the tests, in view of plaintiff's own testimony to the effect that his vision was gone in both eyes, was one for the jury.

Errors in the admission of testimony, in the submission of the special verdict, and in refusing to give requested instructions are urged, and these will be considered in so far as they seem material.

[2] Dr. Beebe was called as an expert by the defendant, and plaintiff admitted his qualifications to testify as such. On cross-examination he was asked by plaintiff's counsel if he considered Oppenheim an authority on optic atrophy. On receiving a qualified negative answer, and the statement that witness had read a part of Oppenheim's works, he was asked this question:

“Do you remember having read at some time in your reading the following language: ‘Great interest is attached to the visual disturbances which are caused by dazzling, by intense illumination of the retina, and especially, as recent experience has shown, by the effect of light from the electric arc, electric ophthalmia. The affection, which is usually of the nature of scotoma, develops with pain in the eye, photophobia, blepheroclonus, etc.; as a rule it usually rapidly disappears, but it may develop into blindness. The result of the ophthalmoscopic examination is negative, or it may show spots in the macular region. And for that authority cite Upto. And less often marked atrophy.’ Now, having your attention called to that passage from Oppenheim, in his chapter on Visual Disorders, will you, do you recall ever having read that before?”

The witness stated that he could not recall having read it, and that he could not deny that it was a correct statement of what is generally taken to be the effect of dazzling on the human eyes by men skilled in the medical profession. The defendant made seasonable objections to the competency of the admitted evidence, moved to strike it out, and requested the court to instruct the jury to disregard it. Each such effort was met by an adverse ruling. Plaintiff's counsel stated that his purpose in asking the question was to ascertain whether or not the witness was familiar with this passage. Under repeated decisions of our court its admission was error. Boyle v. State, 57 Wis. 472, 15 N. W. 827, 46 Am. Rep. 41;Kreuziger v. Chi. & N. W. Ry. Co., 73 Wis. 158, 40 N. W. 657;Waterman v. Chi. & Alton Ry. Co., 82 Wis. 613, 52 N. W. 247, 1136;Zoldoske v. State, 82 Wis. 605, 52 N. W. 778. If, under the guise of finding out a witness' familiarity with the contents of medical works, you can read extracts therefrom to him and inquire if he is familiar with them, then you can get the contents of every medical book before the jury. This our court, for good reasons not now necessary to repeat, has declared cannot be done. In Zoldoske v. State, 82 Wis. 605, 52 N. W. 786, it said:

“Text-books or scientific works cannot be read in evidence to the jury, and the rule cannot be defeated or evaded by getting their contents before the jury by having a witness testify to what they contain.”

And it may be added it cannot be done by asking him if he is familiar with such and such a passage, reading it; for that places the contents of a medical book just as effectively before the jury as though the book itself were introduced.

The case of Ruck v. Milwaukee Brewery Co., 144 Wis. 404, 129 N. W. 414, is relied upon by plaintiff as justifying the reception of the evidence. The case does not so hold. Its ruling is to the effect that a witness who has testified to a given opinion may be asked upon cross-examination if he has not formerly expressed or approved of a different or contrary opinion, in that case alleged to have been contained in a published article. Such evidence was competent, because affecting the probative force of the evidence given by him. Here the only real purpose of eliciting the evidence was to place it before the jury. No claim was made that the doctor had previously expressed any opinion concerning the passage read, or an opinion different from that testified to by him in chief, and the ostensible purpose of finding out if the doctor was familiar with the passage was entirely beside any issue that the court or jury was interested in.

[3][4] The defendant was required by the court to produce for the inspection of plaintiff's attorneys the report of the accident made by the conductor at the end of his run, nearly an hour and a half after the accident. The report was received in evidence over timely objection made by defendant, and its efforts to have it struck out and to have the jury instructed to disregard it proved unavailing. Its reception in evidence was error. Lehan v. Chi. & N. W. Ry. Co., 172 N. W. 787 (decided herewith). It was no part of the res gestæ. Steinhofel v. Chi. M. & St. P. Ry. Co., 92 Wis. 128, 65 N. W. 852. It was not admissible as an admission of a state of facts, or of negligence on the part of the defendant, for an agent of a corporation cannot make such an admission. Randall et al. v. Northwestern Tel. Co., 54 Wis. 142, 11 N. W. 419, 41 Am. Rep. 17;...