Bridge v. City of Oshkosh

• Decision Date: 27 March 1888
• Citation: 37 N.W. 409,71 Wis. 363
• Parties: BRIDGE v. CITY OF OSHKOSH.
• Court: Wisconsin Supreme Court

71 Wis. 363

37 N.W. 409

BRIDGE

v.CITY OF OSHKOSH.

Supreme Court of Wisconsin.

March 27, 1888.

Appeal from circuit court, Marquette county.

Wm. H. Casey, for appellant.

Weisbrod, Harshaw & Nevitt, for respondent.

TAYLOR, J.

The respondent brought this action against the city of Oshkosh, to recover damage for a personal injury sustained by falling upon one of the sidewalks of said city. The case has been twice tried. The first trial was in the Winnebago county circuit court, and resulted in a verdict in favor of the plaintiff for the sum of $217 damages. This verdict was set aside on motion of the plaintiff, and a new trial granted. An appeal was taken by the city from the order granting such new trial, and the order was affirmed by this court. See case reported in 67 Wis. 195, 29 N. W. Rep. 910. On the return of the record the place of trial was changed to Marquette county, where a second trial was had, and the jury returned a verdict in favor of the plaintiff for the sum of $1,800 damages. The defendant moved to set aside the verdict, and for a new trial, upon two grounds: First, that the court erred in admitting certain evidence offered by the plaintiff, and objected to by the defendant; and, second, because the damages were excessive. The motion was overruled, exception duly taken by the defendant, and, after the judgment rendered upon the verdict, the city again appeals to this court.

The only errors alleged upon this appeal are the two stated above. That the street was out of repair, and had been for a long time previous to the accident, and that the accident was caused by the want of repair of the street, is admitted. The evidence which was objected to, and the admission of which is alleged to be error, is as follows: The witness R. W. Bridge, a son of the plaintiff, and a witness on his behalf, was asked the following question: “What was your father's general condition after the happening of the injury, so far as you can give it from what you have seen and observed? Answer. At times it has been impossible for him to do business, and at other times he can do a little something. He has been subject to more or less pain.” The counsel for the defendant objects to that part of the answer which states, “He has been subject to more or less pain.” To this objection the court remarked: “He complains of pain.” “ Question. What have you noticed in respect to his memory since the injury? Answer. I have noticed that since the injury his memory has at times been very bad.” This the defendant moved to strike out, and the motion was denied. The following questions and answers were allowed, by the witness Mrs. Bridge, wife of the plaintiff's son and intimately acquainted with the plaintiff: Question. “Have you observed any change in his condition since the happening of the injury?” Objected to because it is not shown that the witness is an expert, and the question calls for an opinion. The objection overruled, and the witness answered: “Yes, sir; very much in his nervous constitution, and in his health and mind.” The witness also answered under objection: “That she had observed a difference in his memory. His memory has not been so good as it was before. I have noticed a peculiarity about his walk. He has been lame, or that is what I should call it. He calls it a kind of numbness, I believe. He does not walk the same as before.” The court remarked upon the objections of the defendant: “It is difficult to distinguish on these answers. She can tell what she observes,--his physical condition in regard to walking, or sight, or memory, anything of that kind,--if she noticed anything. Her opinion, of course, is not of any value.” The witness Anderson, after testifying as to his relations to the plaintiff, and how far he was acquainted with him, was asked: “What, if any, change in the physical condition of Mr. Bridge did you notice after the injury?”--and the question and answer were objected to by the defendant. The witness answered: “He seemed to be quite nervous. He didn't seem to have any memory; didn't seem to remember things. He seemed to be very shaky,--nervous. His hands were shaking. He was trembling and nervous. If you would ask him a question, probably he would think a moment before answering.” “Did you notice any change in his eyes?” This was also objected to. Answer. “I think I did, by his asking me at different times to read postal cards and letters.” “How often a month did you observe that he had spells of nervousness?” Objected to. A. “I could not say how many times; of course, many times I heard him complain.” The foregoing is substantially all the evidence which was objected to by the appellant. The appellant also makes a general objection to the evidence of complaints made by the plaintiff to his physicians and others, as to his symptoms, pains, and ailments. There was some...