Heddles v. Chi. & N. W. Ry. Co.

• Decision Date: 21 June 1890
• Citation: 46 N.W. 115,77 Wis. 228
• Court: Wisconsin Supreme Court
• Parties: HEDDLES v. CHICAGO & N. W. RY. CO.

77 Wis. 228

46 N.W. 115

HEDDLES

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

June 21, 1890.

Appeal from circuit court, Walworth county.

Action by Charles T. Heddles, an infant, by Stewart B. Heddles, his guardian, against the Chicago & Northwestern Railway Company, for personal injuries. The injury occurred at a crossing, and it was admitted that the whistle on defendant's engine was not sounded. Plaintiff was a little over seven years old. Both of his legs were so badly crushed that amputation was necessary,--the right above the knee, and the left above the ankle. He has to be carried up and down stairs, lifted in and out of bed, is unable to assist himself to calls of nature, and an attendant is constantly necessary. The jury returned a verdict in plaintiff's favor for $18,500, and defendant appeals.Winkler, Flanders, Smith, Bottum & Vilas, for appellant.

Fethers, Jeffries & Fifield, for respondent.

TAYLOR, J.

This is an appeal from a verdict and judgment on a second trial of this action. On the first trial an appeal was taken by the defendant, and the judgment was reversed for reasons stated in the opinion of this court. See case reported in 74 Wis. 239, 42 N. W. Rep. 237. Upon the former appeal, it was held by this court that there was sufficient evidence in the case to support the verdict in favor of the plaintiff, and the judgment was reversed for errors occurring on the trial, and because the damages awarded were, as we thought, excessive. On the second trial, there was the same evidence given on the part of the plaintiff as was given on the first trial, and some additional evidence was produced which materially strengthened the case upon the merits in favor of the plaintiff; and the learned counsel for the appellant do not contend on this appeal that there is not sufficient evidence to sustain a verdict for the plaintiff, but they allege that certain rulings of the court on the trial were erroneous, and that such errors were prejudicial to the appellant.

The first error assigned is the instructions of the court to the jury on the question of damages. The instruction objected to reads as follows: “The amount of the damages which you will assess is left to your judgment and discretion, considering the proper elements of damages, which are as follows: Adequate compensation for all of the physical and mental pain and suffering which the plaintiff suffered at the time of the accident, which he has suffered since that time, and which he is reasonably certain to suffer in the future, by reason of his injuries; also for the mortification and anguish of mind which he has suffered, and will in the future suffer, by reason of the mutilation of his body, and the fact that he may become an object of curiosity or ridicule among his fellows.” The learned counsel for the appellant take exceptions to the use of the words, “for the mortification and anguish of mind which he has suffered, and will suffer in the future, by reason of the mutilation of his body, and the fact that he may become an object of curiosity or ridicule among his fellows.” It is urged that these words convey to the jury an idea different from that conveyed by the words “mental pain and suffering” which resulted from the injury. We think the learned judge only used the expressions excepted to as indicative of the causes from which the mental pain and suffering would be likely to arise from the injury received. There can be no doubt that the loss of the plaintiff's limbs would naturally cause mortification and anguish on the part of the plaintiff, and it is also quite certain that he would be to a considerable extent an object of curiosity, and to the thoughtless and unfeeling an object of ridicule. We think there was no error in the instructions excepted to. For authorities sustaining the instructions, see the following cases cited by the counsel for the respondent: Wilson v. Young, 31 Wis. 574;Craker v. Railway Co., 36 Wis. 657, 677;Power v. Harlow, 23 N. W. Rep. 606, 57 Mich. 107; The Oriflamme, 3 Sawy. 397; Railway Co. v. Wood, 48 Ga. 565;Railway Co. v. Baddeley, 54 Ill. 19;Ballou v. Farnum, 11 Allen, 73; Railway Co. v. Young, (Ga.) 7 S. E. Rep. 912;McMahon v. Railway Co., 39 Md. 438.

The appellant also excepted to the refusal of the court to give the following instruction: “The engineer was not bound to stop his train, or resort to unusual precautions, the moment he saw the plaintiff, merely because he was approaching the track. It being broad daylight, and his engine plainly visible, and the bell ringing, he had the right to assume in the first instance that the plaintiff would stop in time to escape injury. He had the right to run on until he had evidence that the boy approaching the track was heedless of danger. When he had such notice, he was bound to use all reasonable care and diligence to avoid it.” Instead of giving this instruction, the learned judge instructed the jury as follows: “The mere fact that the traveler is approaching the track is not, of itself alone, sufficient to require the engineer to give an alarm, or stop his engine, especially where it is in broad daylight, the engine plainly visible, the engine bell ringing, the traveler is an adult in apparent possession of his senses, and looking in the direction of the train. In such a case, the engineer would have the right to assume that the traveler would stop; but he cannot rest on such an assumption so long as to allow his engine to reach a point where it will become impossible for him to control his train, or give warning in time to prevent injury to the traveler, supposing the traveler to continue in his course.” We think the instruction as given by the court was sufficiently favorable to the defendant, and that the instruction asked was properly refused, because it did not fairly present the case to the jury as it was made by the evidence in the case.

The third exception is taken to the following testimony given by the witness Macloon. Macloon was examined as to a conversation he had with the engineer, Roberts, shortly after the accident; and he testified, under objection, that Roberts in that...