Braun v. Minneapolis, St. P. & S. S. M. Ry. Co.
| Decision Date | 27 May 1919 |
| Parties | BRAUN v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Marathon County; A. H. Reid, Judge.
Action by Fred W. Braun against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. From a judgment giving him insufficient relief, plaintiff appeals. Affirmed.
The plaintiff, a traveling salesman about 33 years of age, on March 10, 1917, sustained personal injuries by reason of the derailment of one of defendant's trains, on which he was riding as a passenger, near Stark Station, in Oneida county. At the time of the derailment plaintiff was about in the center of the coach which was next to the smoking car. His testimony is to the effect that he was standing in the aisle, having just arisen, with one hand on the seat, and that by the jolting movement caused by the derailment he was thrown with great violence against the side of the coach, striking his right side against the corner of the window frame, injuring the musculospiral nerve of the right arm, causing great pain and partial paralysis of the arm. He also testifies that he was rendered unconscious, and so injured that it caused a hemorrhage and nausea, and within a short time after the accident, and before seeing any physician, he bled from the nose and vomited blood; that there is a substantial loss of sensation on the right side of his body, such an injury to the head that there has been an entire loss of hearing in the right ear, a serious and permanent injury to his nervous system, a substantial impairment of memory, and sexual impotence, all resulting in a condition described by some of the testimony as neurasthenia.
Dr. McMahon, a physician testifying on behalf of the plaintiff, examined the plaintiff in June following the accident and subsequently. He found impairment of vision of the right eye and a loss of hearing in the right ear, limitation of motion in the joints of the right arm, muscular weakness, and a substantial absence of sensation in the entire right side of the body; that up to the time of the trial there had been an evident loss of weight and retrogression in his general appearance and in his nervous system. Assuming that the plaintiff was injured as he stated he was by the accident, the witness believed that his condition is entirely due to the injury he sustained at the time of his accident and that he has both organic and functional disturbance. Assuming an accident, he has had either a hemorrhage into the skull cavity, or else he has also had possibly a fracture at the base of the skull on the right side of the head. He may show some improvement from time to time, but the witness did not think that plaintiff will ever be a well man again, and he may get worse, and that unless he shows a very marked degree of improvement he will never be able to carry on his regular business. Other medical testimony is to the effect that he has a form of psychic or mental epilepsy, due to an injury to his brain on March 10, 1917, assuming that he was injured as he testified; also that his function of equilibrium is substantially impaired, caused by a pressure within the labyrinth of the ear.
Defendant's medical testimony tended to indicate that there was a loss of sensation on the right side of the body, attributable to the injury to the arm, that there was no evidence of any injury having been caused to the head or ear at the time of the accident, and that there was no ground for supporting the claim that there was any injury to the head at the time of the accident, or any such result as claimed by the plaintiff, and that the result of the tests made on examinations of the plaintiff indicated that some of the conditions of which he complained were rather assumed than existing.
Plaintiff had been thrown from an automobile in June, 1915, at which time, according to a report he made in connection with an application for compensation, he stated that he had been bruised on his right side.
The jury by special verdict found that there was negligence on the part of the defendant, which was the proximate cause of plaintiff's injury, and assessed his damages at $2,500. After verdict, plaintiff moved for an order setting aside the jury's assessment of damages and a new trial on that issue, or for an order setting aside the entire special verdict and granting a new trial. These motions were denied, and judgment was directed in favor of the plaintiff for the $2,500 damages and costs, without prejudice to the rights of the plaintiff to take an appeal, and from judgment entered in accordance therewith plaintiff has appealed.Drew, McMahon & McMahon, of Milwaukee (Alma Barry, of Milwaukee, of counsel), for appellant.
W. A. Hayes, of Milwaukee (C. B. Bird, of Wausau, of counsel), for respondent.
ESCHWEILER, J. (after stating the facts as above).
Plaintiff's main contention on this appeal is that the damages awarded by the jury were inadequate, and that such result should be set aside and a new trial had, for the reasons: (1) That the form of the question in the special verdict as to the damages was wrong; (2) that the court erred in its instructions upon the subject of damages; (3) that the court erred in excluding evidence offered by plaintiff, or in admitting evidence offered by defendant on the subject of damages; (4) because a new trial should be had on the ground that such award of damages was grossly inadequate, contrary to the overwhelming evidence and the law, or as an improper exercise of their duty by the jury.
The plaintiff requested the submission of the following question:
“(5) In the event that the plaintiff should be entitled to recover, at what sum should his damages be assessed?”
The court refused to submit such question, and did submit the following:
“(5) What sum would reasonably compensate the plaintiff for his loss and injury, which was directly produced by the derailment of train in question?”
This was answered by the jury at $2,500. In instructing the jury upon this question the court said as follows:
“* * * You are simply to say what the plaintiff's direct loss and injury amounts to, when measured in money. In arriving at the amount of such loss and injury, the jury should bear in mind that you are to include only such loss and injury as were the direct results of the derailment in question. With that limitation in mind, you should, in answer to this question, name such sum as you find, from the...
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