Kalish v. Milwaukee & Suburban Transport Corp.

• Decision Date: 11 January 1955
• Citation: 67 N.W.2d 868,268 Wis. 492
• Parties: Mustapha KALISH, Rrespondent and Appellant, v. MILWAUKEE & SUBURBAN TRANSPORT CORP., Appellant and Respondent.
• Court: Wisconsin Supreme Court

Page 868

67 N.W.2d 868

268 Wis. 492

Mustapha KALISH, Rrespondent and Appellant, v.MILWAUKEE & SUBURBAN TRANSPORT CORP., Appellant and Respondent.

Supreme Court of Wisconsin.

Jan. 11, 1955.

Rehearing Denied March 8, 1955.

Walter J. Steininger, Milwaukee, Thomas P. Maroney, Milwaukee, of counsel, for Mustapha Kalish.

Kivett & Kasdorf, Milwaukee, Clifford C. Kasdorf and Alan M. Clack, Milwaukee, of counsel, for Milwaukee & Suburban Transport Corp.

BROWN, Justice.

The trial court referred to the principle that the jury's answers to questions of fact are not to be disturbed if there is credible evidence to support them.Strnad v. Co-operative Insurance Mutual, 1949, 256 Wis. 261, 40 N.W.2d 552.And a court must view the evidence in the light most favorable in support of the verdict.Bovi v. Mellor, 1948, 253 Wis. 458, 34 N.W.2d 780.Nevertheless, the trial court failed to discover evidence upon which the finding of negligent operation could be sustained and in this, we think, it erred.The jury could believe the testimony of the witness who by measurement found that the distance from the south end of Mader's restaurant to the north end of the safety island was 194 feet and to the south end of the safety island an additional 75 feet.Allowing for the length of the bus, it could believe that the motorman discovered his car was not under control when it was more than 200 feet north of the rear end of the bus and still he did not apply his emergency brake until, in his own version, he was 25 feet away from it.

A common carrier of passengers, such as a streetcar company, owes to its patrons the highest duty of care to avoid injury to them by collisions.Heucke v. MilwaukeeCity R. Co., 1887, 69 Wis. 401, 34 N.W. 243.

'The degree of care required of a common carrier is not capable of a precise formulation, applicable to all situations that may arise.In general, however, carriers of passengers are required to exercise the highest degree of care, vigilance, and precaution for the safety of those it undertakes to transport, and are liable for the slightest negligence * * *'10 Am.Jur., Carriers, p. 163, sec. 1245.

On this evidence, the motorman's delay in resorting to the emergency brake until even that was used too late, presents a jury question of his care or negligence in the operation of the streetcar.The jury's answer may not be disturbed.The judgment of the trial court dismissing plaintiff's action therefore must be reversed.

Defendant, prudently foreseeing such a result and believing that there were errors in the jury's computation of damages, has appealed from the denial by the trial court of its motions after verdict which demanded the reduction or elimination of certain items of damage.

The damage questions of the special verdict were the following:

At what sum do you assess his damages in the following items:

(a)  Medical Expense.  Answer                               $299.75
                (b)  Loss of Wages.  Answer                               $1,000.00
                (c)  Pain and Suffering and Disability, if any.  Answer   $3,500.00
                

The jury found plaintiff's medical expenses were $299.75.This is the sum of the hospital bill of $219.75 and the $80 bill of Dr. Ansfield on whom the plaintiff called after he was discharged from the hospital.The hospital record shows that when plaintiff was admitted on July 22, 1953, he was suffering from a sprain of the sacroilliac joint, from bronchitis and from osteo-arthritis of the lumber spine.Defendant contends that plaintiff was treated for all three ailments and it should not be...