Erdmann v. Wolfe
| Decision Date | 02 February 1960 |
| Parties | Virginia ERDMANN, Respondent, v. Marie WOLFE, Special Adm'x, of the Estate of Milton Wolfe, et al., Appellants. |
| Court | Wisconsin Supreme Court |
Everson, Ryan, Whitney & O'Melia, Green Bay, for appellants.
Kaftan, Kaftan & Kaftan, Green Bay, for respondent.
Three questions are presented. (1) Was the $5,000 allowance for personal injuries excessive? (2) Did the county court correctly determine, as a matter of law, that Miss Erdmann was not causally negligent? (3) If not, is a new trial required?
1. Damages. Miss Erdmann testified that after the collision, she experienced terrible pain; that she was taken to the emergency room at the hospital in Sturgeon Bay, where Dr. Dorchester sewed up lacerations in her forehead, chin and left knee. She was taken to her home in Green Bay the following day, and was in bed or on a couch there for a couple of weeks because she could not bend her leg. She could not bend her leg and support her weight for approximately a month. The trial took place some three years after the accident. At the time of trial, she still had some trouble climbing stairs, kneeling, stooping, bending, climbing hills, and walking for any length of time. Her knee hurts, throbs, and is unstable. She had gone to an orthopedic surgeon who gave her injections in her knee, and this helped to some extent. He sent her to a curative workshop, and prescribed exercises. For several months, she did an exercise daily in which she sat on the edge of the table, and lifted weights with her left foot. Her knee still makes a grinding noise. She had a two-inch, ugly, pink scar on her forehead which was unsightly and lasted for about a year, but was not very noticeable by the time of trial.
Dr. Dorchester testified that he had taken sixteen stitches in her forehead, five under her chin, and five in her left knee. He did not see her again until just before the trial. He then examined her knee, and testified that the medial head of the gastrocnemius muscle was completely gone. The gastrocnemius muscle is on the back of the leg, just below the knee. Two heads of it are fastened to the femur, and with one gone, the muscle pulls unevenly. He testified that the muscle's function is to bend the knee. Under her right knee, he said that he could feel a well-developed medial head of the gastrocnemius muscle, but on the left there was a hole under the skin where the muscle should be. He testified that this makes her knee less stable, and is a permanent condition. He was cross-examined to a considerable extent as to whether the hamstring tendons do not overlap the medial head of the gastrocnemius muscle so that it cannot be felt, but he insisted that it can.
Dr. Nellen, called as a witness on behalf of the defendants, testified that he had examined Miss Erdmann in 1956, and in 1958. His findings were essentially the same on both occasions. He found what he termed a minimal grinding of the left kneecap. He said that she has mild chondromalacia which is a roughening of the undersurface of the kneecap, and that this causes the grinding. He found that the circumference of both her knees was the same, but the circumference of her left thigh was one-half inch less than the right thigh. He said that because of the chondromalacia, she propably experienced pain and favored her left knee. This caused some atrophy of the muscles, resulting in the difference in measurement. Dr. Nellen testified that the chief function of the gastrocnemius muscle is to raise the heel; that it does have something to do with bending the knee, but that function is weak and secondary; that he did not believe it was possible to feel the head of the gastrocnemius muscle.
Defendants considered the $5,000 award for personal injuries excessive, and moved for a new trial upon that ground. They presented affidavits of orthopedic surgeons to the effect that the knee-bending function of the gastrocnemius muscle is comparatively insignificant, and that its medial head 'is so deeply seated underneath tissue in the back of the knee and covered by the hamstring tendons that it cannot be manually felt by an examining physician.' Affiants asserted that these facts are anatomical and physical truths generally accepted by the medical profession.
The county court denied the motion, saying
The trial court saw and heard the witnesses and observed the injured party and had a better opportunity than we to determine whether the damages are excessive. Korpela v. Redlin, 1958, 3 Wis.2d 591, 89 N.W.2d 305. The trial court approved this verdict. If we were to eliminate that part of Dr. Dorchester's testimony which is challenged as being contrary to anatomical facts, we still cannot say that the record...
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