Collins v. City of Janesville

• Decision Date: 03 May 1898
• Citation: 99 Wis. 464,75 N.W. 88
• Parties: COLLINS v. CITY OF JANESVILLE.
• Court: Wisconsin Supreme Court

99 Wis. 464

75 N.W. 88

COLLINS

v.CITY OF JANESVILLE.

Supreme Court of Wisconsin.

May 3, 1898.

Appeal from circuit court, Dane county; R. G. Siebecker, Judge.

Action by Ann Collins, an infant, by Patrick Collins, her guardian ad litem, against the city of Janesville. From a judgment for plaintiff, defendant appeals. Reversed.Horace McElroy, for appellant.

Mahoney & Cunningham, for respondent.

CASSODAY, C. J.

This action is brought to recover damages for personal injuries sustained by reason of falling upon an alleged defective sidewalk. The plaintiff was, at the time of the injury, between 12 and 13 years of age. Issue being joined and trial had, the jury returned a verdict in favor of the plaintiff, and assessed her damages at $1,500. From the judgment entered thereon the defendant brings this appeal.

Error is assigned because an expert physician, in answer to a hypothetical question, was allowed to testify to the effect that the plaintiff was liable--quite likely--to be bothered with the injury for several years, and might be always, at least under certain conditions, as overuse. The rule is well settled that, in order to recover damages on the ground that an injury is permanent, the evidence must show such permanency with reasonable certainty. Hardy v. Railway Co., 89 Wis. 187, 61 N. W. 771;Block v. Railway Co., 89 Wis. 371, 61 N. W. 1101;Raymond v. Keseberg, 91 Wis. 195, 64 N. W. 861;Groundwater v. Town of Washington, 92 Wis. 61, 65 N. W. 871. The amount of the verdict makes it quite certain that the jury must have found the injury to have been permanent. To allow a verdict to be based upon such conjectural evidence would be to defeat the ends of justice. Error is assigned because an expert physician was allowed to testify to the effect that consumption in the family of the plaintiff's father or mother, especially the immediate family, would show a strong susceptibility in all of the family to the infection of consumption,--local tuberculosis,--particularly in swollen tissues which do not fully recover their normal condition after injury; that he could not say whether the inflammatory condition of the surface of the bone and the ligaments which he saw was so infected; that consumption would have a bearing in the case, and that in the course of years would affect it,--probably would; that there was danger of it; that stating that it would probably occur was stating it with a little greater degree of certainty than he desired, but...