Du Cate v. Town of Brighton

• Citation: 133 Wis. 628,114 N.W. 103
• Parties: DU CATE v. TOWN OF BRIGHTON.
• Decision Date: 13 December 1907
• Court: United States State Supreme Court of Wisconsin

133 Wis. 628

114 N.W. 103

DU CATE

v.TOWN OF BRIGHTON.

Supreme Court of Wisconsin.

Dec. 13, 1907.

Appeal from Circuit Court, Wood County; Charles M. Webb, Judge.

Action by Eliza Du Cate against the town of Brighton. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Appeal from a judgment of the circuit court for Wood county rendered in an action for personal injury caused by a defective highway. The defendant is one of the towns of Marathon county, and the venue was changed to Wood county by consent. There the case was tried and resulted in a special verdict as follows, omitting a question answered by the court. “(2) Was the place where the plaintiff was injured at or about 115 rods east of the quarter post mentioned in the complaint, and within about 2 rods of the hole or gully in the highway west of the gate? Answer. Yes. (3) If you answer question No. 2 ‘No,’ then was the plaintiff injured at a point at or about immediately east and north of the gate or bars, referred to and described by the witness F. A. Colby? Answer. No. (4) Was the highway at the point or place where the plaintiff was injured at that time insufficient and out of repair? Answer. Yes. (5) If you answer question 4 ‘Yes,’ then were the accident and plaintiff's injury proximately caused by said insufficiency and want of repair of the highway? Answer. Yes. (6) If you answer question 4 ‘Yes,’ then did the highway officers of the defendant town know, or in the exercise of ordinary care and diligence in the discharge of their duties ought they to have known, that the highway was so insufficient and out of repair a sufficient length of time before the accident to have repaired the same, in the exercise of ordinary diligence? Answer. Yes. (7) Was the plaintiff guilty of any want of ordinary care, which proximately caused or contributed to produce her said injury? Answer. No. (8) In what sum was the plaintiff injured by reason of her said injury? Answer. $1,000.” The plaintiff was required to remit from this verdict the sum of $69 erroneously included therein for medical services, and judgment was rendered thereon for $931, with costs. The appellant assigns and argues error in submitting to the jury the sixth question of the special verdict and in refusing to give and giving instructions relating to damages for permanent injuries and in relation to the burden of proof; also, in visiting the jury in the jury room during their deliberations and conversing with them about the case and their verdict; also in denying motion for a nonsuit, motion to direct a verdict in defendant's favor, motion for judgment notwithstanding the verdict, motion to amend the verdict, and motion for a new trial. Another group of errors assigned is in the rejection of evidence offered by defendant and in the reception of evidence objected to by defendant.R. J. McBride and Geo. L. Jacques, for appellant.

Park & Carpenter and Groelle & Humphrey, for respondent.

TIMLIN, J. (after stating the facts as above).

1. We must hold that upon the evidence there was a prima facie case made against the defendant, and therefore errors assigned in denying defendant's motion for a nonsuit and its motion to direct a verdict in its favor and its motion for judgment notwithstanding the verdict, and its motion to amend the verdict by changing answers to questions, must be overruled. It would serve no good purpose to again incorporate the evidence into the report of this case. It would merely show a case of the plaintiff lawfully using the highway, the existence of one of the ordinary defects common to highways, but serious enough to render it unsafe and insufficient for travel, and the plaintiff thrown out of her vehicle thereby, while in the exercise of ordinary care on her part. The evidence was not conclusive on either of the foregoing propositions but sufficient to take the case to the jury. We find no reversible error in the admission or exclusion of evidence.

2. Concerning errors assigned in giving and refusing instructions, it appears that counsel for defendant orally requested the trial court to “instruct the jury that the burden of proof is upon the plaintiff upon all the questions, except question 7.” This request was properly refused, because not in writing, and because that subject was covered by the general charge in different words, expressing the same idea. Hardt v. C., M. & St. P. R. Co., 130 Wis. 512, 521 op., 110 N. W. 427, and cases cited.

3. The defendant requested the court in writing to instruct the jury as follows: “There is no evidence in this case showing or tending to show that the plaintiff received any permanent injuries by reason of the accident complained of. So, in answering question No. 8, you must take that fact into consideration, and in arriving at an answer to said question nothing must be allowed for any permanent injuries.” The bill of exceptions shows this request, its refusal, and due exception to such refusal, and that the court instructed the jury with reference to question No. 8, to the effect that they might consider the extent and duration of the plaintiff's injuries and whether permanent or not. To this part of the charge there was also an exception. We can find nothing in the evidence to uphold the refusal of this instruction, or to authorize the giving of an instruction that the jury might consider in their estimate of damages whether the injuries were permanent or not. One of the two physicians who attended plaintiff was called as a witness, and he testified that he attended her from the time of the injury on August 21, 1903, until September 5th following, and found her suffering from severe pain in the left side, in the region of the kidney, and across the bowels. Her bowels were somewhat bloated, and there was swelling, pain, and tenderness over the left kidney. There was an urinary discharge of blood the next day, and her temperature was 102 1/2, her pulse 106, and he made no further examination, and prescribed opiates and a cathartic. He did not think any ill effects attended the injury and peritonitis. He summed up in this way: “Beyond a soreness in the region of the bowels and over one of the kidneys, that was the extent of her injuries, so far as I know.” The testimony of the plaintiff herself does not show any permanent injury, and these two are the only witnesses testifying upon the subject. It must be kept in mind that permanent injury is something different from future pain and suffering, and relates to a condition lasting during all the after life of the party injured. A jury might well infer that pain and suffering caused by an injury and continuing up to and existing at the time of trial would continue for some time in the future and estimate the damages accordingly, but the jury could not infer permanent injury from any such testimony as is here quoted, where there are no visible wounds, nothing in the nature of a disability or disease commonly known to be permanent, and no opinion evidence tending to show permanency. White v. Milwaukee City Ry. Co., 61 Wis. 536, 21 N. W. 524, 50 Am. Rep. 154;Hardy v. Milwaukee St. Ry. Co., 89 Wis. 183, 61 N. W. 771;Raymond v. Keseberg, 91 Wis. 191, 64 N. W. 861;Boelter v. Ross L. Co., 103 Wis. 324, 79 N. W. 243. The respondent apparently relies upon the smallness of the verdict to show that the jury did not include any damage for permanent injury, and hence that the error was harmless; but we are unable to affirm the correctness of this view upon the record present here. We discover no other error in the charge or in the refusal of requests to charge.

4. The sixth question of the special verdict above quoted shows two issuable propositions disjunctively connected and an affirmative answer. Was it error to submit such question? In Odegard v. North Wis. L. Co., 130 Wis. 659, pp. 681, 682 op., 110 N. W. 809, this question is mooted, but not decided. The particular questions of the special verdict under consideration in that case, Nos. 7 and 10, will be found in the report of that case at pages 666 and 667 of 130 Wis., 110 N. W. 809, and were identical with the question under consideration here. Upon the other hand, in Woodward v. Boscobel, 84 Wis. 226, 229, 54 N. W. 332, a judgment was affirmed against a city which rested upon a special verdict containing a question in this form. It does not appear, however, from the report that objection was made to the form of the question. In Mueller v. N. W. Iron Co., 125 Wis. 326, pages 331, 332 op., 104 N. W. 67, objection seems to have been taken to a question of the special verdict in this form, namely: “Was such condition known to the defendant company, or ought it to...