Bucher v. Wis. Cent. Ry. Co.

• Decision Date: 30 March 1909
• Citation: 120 N.W. 518,139 Wis. 597
• Parties: BUCHER v. WISCONSIN CENTRAL RY. CO.
• Court: Wisconsin Supreme Court

139 Wis. 597

120 N.W. 518

BUCHER

v.WISCONSIN CENTRAL RY. CO.

Supreme Court of Wisconsin.

March 30, 1909.

Appeal from Circuit Court, Winnebago County; Geo. W. Burnell, Judge.

Action by Walter C. Bucher against the Wisconsin Central Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.Walter D. Corrigan, Wm. A. Hayes, and Clifton Williams, for appellant.

Bouck & Hilton and John F. Kluwin, for respondent.

TIMLIN, J.

The negligence charged against the defendant consists in its maintaining alongside of its main track at or near the station called Lake Villa a standpipe or water plug in such proximity to the track as to be dangerous to employés of defendant in the ordinary discharge of their duties. The appellant, by motion for a directed verdict and otherwise, raised in the court below, and now presents to this court, (1) that there was no evidence sufficient to go to the jury upon the question of defendant's negligence; (2) that the uncontroverted evidence affirmatively shows contributory negligence on the part of the plaintiff.

The evidence tends to show that the upright part of this pipe was 22 inches from the step on the side of the engine cab used for entrance to the cab, and that this was too near for safety. The question of defendant's negligence upon this ground was fairly for the jury. Upon the question of the contributory negligence of the plaintiff there is strong evidence on the part of defendant to show plaintiff guilty of such negligence. But the testimony of the plaintiff is, in substance, that in the regular discharge of his duty as head brakeman in the usual manner under the circumstances shown, and with the kind of train shown, he was standing on the steps leading into the engine cab, holding the hand rails, leaning outward and looking back toward the rear of the train where the conductor was, for the purpose of receiving from the conductor and transmitting to the engineer the signal to pull out, which had not yet been given, but was momentarily expected. While in this position and when unaware of the proximity of the standpipe, he was brought in contact with the standpipe by the moving train, and knocked off the steps, and injured. Printed rules confessedly brought to the notice of the plaintiff are offered in evidence, and contain general words of warning, and directions to employés to acquaint themselves with the risks of their business and the location and distance of objects near the track, including standpipes, but no specific standpipe or other object is designated, and the rules themselves are in their general import merely declaratory of the duties and responsibilities resting upon employés by law. Upon this showing the question of plaintiff's contributory negligence was for the jury.

Error is assigned because the court failed to submit in the special verdict the question of plaintiff's assumption of the risk. The court did, however, submit a question numbered 6 covering the contributory negligence of the plaintiff, and instructed the jury as follows: “If you find that the plaintiff knew or had reasonable means of knowing the danger of coming in contact with the standpipe, you should answer the sixth question ‘Yes.’ ” This authorized the jury to affirm the contributory negligence of the plaintiff under the circumstances stated in the question above quoted, and covered the assumption of risk under the evidence presented in the case. There could be no assumption of risk, unless the plaintiff “knew or had reasonable means of knowing the danger of coming in contact with the standpipe,” and, if he had this knowledge or reasonable means of knowledge, there was an absolute direction to find him guilty of contributory negligence. This was sufficient. Besides this, there was no request that the court submit a question in the special verdict covering assumption of risk, but merely an exception taken to the verdict because it did not contain such a question. This assignment of error cannot prevail.

The plaintiff presented two expert witnesses, who testified that they were osteopaths, holding diplomas from an osteopathic school of medicine and licensed to practice osteopathy in this state by the board of medical examiners. They also testified that they were required to study and have knowledge of the anatomy of the human body, including the nervous system, and they were required to be learned generally in all branches studied and practiced by regular physicians, except the materia medica. It is objected that the plaintiff has not shown that they had any knowledge from actual experience in similar cases, and this would perhaps be a good objection were that fact affirmatively shown. But the defendant omitted the usual preliminary cross-examination with reference to their qualifications, and omitted on the regular cross-examination to bring out this fact, and then moved to have their opinions stricken out on this ground. This objection was therefore not well taken. The plaintiff went far enough in the first place to qualify these osteopaths as experts for some general purposes relevant to the case and covering to a considerable extent the questions asked. Bloch v. American Ins. Co., 132 Wis. 150, 112 N. W. 45;Kath v. Wisconsin Central Ry. Co., 121 Wis. 503, 99 N. W. 217. This assignment of error cannot prevail.

Other errors assigned and argued in the brief of the appellant need not be noticed because the judgment of the court below must be reversed for two reasons so allied that we shall consider them together.

One of these is that the damages are excessive and rest largely upon incompetent evidence, and the other is that opinion evidence bearing upon the question of damages sustainedby the plaintiff was improperly admitted. A summary of facts bearing upon these questions may be given as follows: On September 26, 1906, the plaintiff was injured as stated, and on the same day he was examined by Dr. Pullen, a physician in the employment of the defendant, who then made a written memorandum of plaintiff's condition. There was a contusion on the back part of the head and upon the right hip. The injury to the head was a small swelling of the scalp about as large as a walnut on the back of the head. The scalp was not cut. There was a contusion on the right shoulder and the lip was slightly lacerated, but not enough to break the skin or draw blood in either case. This was the extent of his visible injuries. He made no complaint about his ear, but he complained of pain in the left testicle, and this the doctor examined, and found a small chronic varicocele. The evidence of the train crew with the plaintiff at the time of the injury also indicated that plaintiff's injuries were slight. The plaintiff testifies that he was in good health, of sound hearing and sight, and sexually potent prior to the injury, but not since the injury; that he has suffered pain and dizziness continually since the injury. According to plaintiff's own testimony, he was in bed only about a week, and he went to work again in November for one Green, doing general horseshoeing at $2.50 per day, and worked at this until the middle of January, 1907, sometimes 5 days in a week and sometimes 4 1/2 days. He also worked irregularly after this at other work. In February or March, 1907, he called in Dr. Corbitt when he was suffering from an acute attack of the grippe, and in this condition Dr. Corbitt first saw him. Plaintiff was then complaining a good deal of pain in his head, was sleepless, and had a moderately high temperature. Dr. Corbitt called on him twice after that, and for about two or three months ensuing he called at the doctor's office frequently, and on these occasions complained about his head, eyes, and ears, of having a constant headache, numbness in his arms, and pains. The doctor made tests, and was convinced that there was such numbness, and found him quite nervous, and advised rest. The doctor said: “He complained also at that time of being impotent. He complained of his eyes and his ears. I examined his ear. I advised him to see a specialist on the eye and ear. I thought at that time possibly that the persistent headache might be due to some eye strain.” The doctor went on to relate that the plaintiff complained of tenderness on the upper and lower part of his spine, and the doctor thought there was such tenderness. The nerve controlling the erection of the penis is contained in the sacro plexis, and it was tender about that region. The brain, spinal cord, and the perval nerves all take part in the phenomenon of the erection of the penis.

After an interval of three months or more, during which plaintiff was at his home and not having any medical attendance, and shortly before the trial, the doctor examined him again, and found his condition practically the same, except that plaintiff had lost in flesh. Dr. Corbitt went on to explain the erectile action of the penis, the cause thereof, the outflow of blood which produces this action, and stated that he believed from an examination of the case and the injury that there is in the instant case sufficient injury to either the brain or the spinal cord to cause impotence. In his opinion this condition of impotency resulted from an injury by a blow on the back of the head caused by coming in contract with the standpipe while riding on the side of a train moving at 15 miles per hour; the blow being sufficient to cause temporary unconsciousness, and the fall being sufficiently violent to prevent plaintiff from continuing his work, and so that he had to be assisted to get on the train, and had lain in bed thereafter for five days, and was prevented from working for several weeks. The questions to the doctor in this regard were very faulty, but not objected to. Dr. Corbitt also gave as his opinion that the plaintiff was not at the time of the trial physically able to work, and that his pain, numbness, and dizziness are probably pettimal, the...