Bierbach v. Goodyear Rubber Co.

• Decision Date: 07 February 1882
• Citation: 54 Wis. 208,11 N.W. 514
• Parties: BIERBACH v. GOODYEAR RUBBER CO.
• Court: Wisconsin Supreme Court

54 Wis. 208

11 N.W. 514

BIERBACH

v.GOODYEAR RUBBER CO.

Supreme Court of Wisconsin.

Filed February 7, 1882.

Appeal from county court, Milwaukee county.

Action to recover damages for personal injuries. In July, 1880, the plaintiff was passing along the south side of Grand avenue, in the city of Milwaukee, a little west of the Plankinton House, in his wagon, drawn by one horse. He was going east, and a young man with him was driving the horse. At the point indicated he concluded to return to his place of business from whence he came, and the driver, by his direction, reined the horse out of the line on which he had been going, to the north and towards the center of the avenue, for the purpose of turning around. The horse had been going at a moderate trot, but in process of turning slackened to a walk. The wagon of the defendant company, also drawn by one horse, driven by a servant of the company, followed the wagon of plaintiff a short distance behind. That horse was also going at a moderate trot. Just as the plaintiff's wagon was leaving the line on which it had been moving east, and a little before it reached a position at right angles with that line, the left forward wheel of defendant's wagon collided with the right hind wheel of plaintiff's wagon, about three inches from the tire. The collision upset the plaintiff's wagon, threw him to the ground, and caused the injuries complained of. Both horses were quiet, gentle, and easily governed. There was an unobstructed space of about 16 feet in width between the point of collision and the curb-stone on the south side of the avenue. The collision occurred during the forenoon. A further statement of the case, and some of the rulings of the court on the trial, will be found in the opinion. In addition to certain special findings, the jury found for the plaintiff and assessed his damages at $3,000. A motion for a new trial was denied, and judgment was entered pursuant to the verdict, from which the defendant appeals.Austin & Runkel, for respondent.

Nath. Pereles & Sons and E. P. Smith, for appellant.

LYON, J.

Numerous errors are alleged on behalf of the defendant, but the conclusion we have reached upon two of them renders it unnecessary to pass upon the others.

1. On the trial the plaintiff testified in his own behalf that, when injured, his business was the manufacturing of machines for cleaning feathers, and another article known as the Bierbach wagon patent, and that he continued in such business for several months after he was injured, when he sold out and gave it up. He also testified in his own behalf, under objection, that his average business was worth from $75 to $100 per month, and that he gave it up because, on account of his injuries, he was unable to attend to it. To the question: “After you were injured, did you carry on your business for any length of time?” put to him by his counsel, he answered, “Yes, sir; I carried it on, but I did not attend to it but a few months. I got negligent and didn't care, I was in such a condition. But when orders came my man would attend to them.” As a basis for the assessment of damages, proof of the average value of the plaintiff's business while he carried it on was clearly incompetent. It could only be used to enable the jury to estimate therefrom what the future profits would have been had the plaintiff not been injured, and had he continued in the business. Such a basis for the estimate of the future profits of the business in which the plaintiff was engaged is altogether too uncertain to furnish a safe guide for the verdict of a jury.

In Masterson v. Mount Vernon, 58 N. Y. 391, the plaintiff sued a municipal corporation to recover damages for personal injuries caused by a defective highway. It appeared that the plaintiff and his partner were importers and dealers in teas, and had been for many years. The plaintiff made the purchases, which required a high degree of skill. He possessed the requisite skill. Their business was extensive, but there was a great falling off in it because the plaintiff was unable, by reason of the injuries complained of, to make the purchases. Judgment for the plaintiff was reversed because the trial court permitted the plaintiff, testifying in his own behalf, to answer this question: “About what have been your profits, year by year, in that business?” After referring to several cases, and among them to the cases of Nebraska City v. Campbell, 2 Black, 590, and Wade v. Leroy, 20 How. (U. S.) 34, in which it was held competent for a physician, in an action for personal injuries, to prove the extent of his practice, the court proceeds to say: “In none of these cases is any intimation given that proof may be given as to the uncertain future profits of commercial business, or that the amount of past profits derived therefrom may be shown, to enable the jury to...