Karsten v. Meis

• Court: Wisconsin Supreme Court
• Writing for the Court: MARTIN
• Citation: Karsten v. Meis, 263 Wis. 307, 57 N.W.2d 360 (Wis. 1953)
• Decision Date: 03 March 1953
• Parties: KARSTEN, v. MEIS et al.

Page 360

57 N.W.2d 360

263 Wis. 307

KARSTEN, v. MEIS et al.

Supreme Court of Wisconsin.

March 3, 1953.

Rehearing Denied May 5, 1953.

Action for damages arising out of personal injuries suffered by plaintiff Kenneth Karsten when the automobile owned and driven by defendant Norman Meis, in which plaintiff was a guest, struck a tractor-trailer on Highway 41. The jury found that defendant Meis was causally negligent, that plaintiff was not negligent and that he had not assumed the risk, and assessed damages for pain and suffering and disability at $4,000.

In its opinion on motions after verdict, the court said:

'* * * this Court finds that the allowance for pain and suffering and disability is grossly excessive and should be reduced from the amount found by the Jury, to-wit: the sum of $4,000.00, to the sum of $1,250.00; thus entitling the Plaintiff to a total recovery of $1,801.20, together with his taxable costs and disbursements of this action. The Plaintiff is granted an option to enter judgment for said sum, it being, in the opinion of the Court, the lowest sum which an unprejudiced jury, properly instructed, would award. In case the Plaintiff declines to accept said amount, within 60 days of the date hereof, a new trial is ordered because, in the opinion of the Court, said finding of the Jury is against the great weight and clear preponderance of the evidence and not in the interest of justice.'

Plaintiff appeals from the order granting a new trial.

On October 6, 1948 plaintiff was riding as a guest in the automobile of the defendant Meis. There were eight people in the car and plaintiff was sitting on the right side of the rear seat. He was 'dozing off and sleeping.' The occupants of the car had bowled at Brownsville and then gone to Fond du Lac for something to eat. At the time of the accident they were returning to Brownsville on Highway 41. About eight miles south of Fond du Lac where railroad tracks cross the highway, three tractor-trailers also traveling south had stopped for the passage of a freight train and were in the process of starting up when the defendant approached from the rear and struck the last truck.

Skid marks on the highway, as testified to by the county traffic officer, indicated that the brakes had been applied on the Meis car about thirty feet from the point of impact and that defendant had attempted to pull his automobile to the left. The car struck the truck underneath, hit the tires and bounced back. Although the car was badly damaged, the officer concluded that there were no defects because the car was new. He talked with the driver of the truck that was hit, who said that he saw Meis coming and flicked his lights. Plaintiff was rendered unconscious by the impact and did not know of the accident until he was in the hospital.

Further facts will be stated in the opinion.

J. E. O'Brien, Fond du Lac, for appellant.

John J. Schneider, Fond du Lac, Ervin A. Weinke, Fond du Lac, of counsel, for respondents.

MARTIN, Justice.

The trial court granted a new trial in the interests of justice for the reason that the damages assessed by the jury were excessive. The question presented is whether it was error to reduce the damages assessed by the jury to the lowest amount a properly instructed jury would award or grant a new trial upon appellant's failure to accept the reduced amount.

We have examined the record carefully and the evidence respecting appellant's pain and suffering and disability is as follows: Upon appellant's admission to the hospital it was found that he had a brain concussion, cuts of the hands and arms, contusion and sprain of both wrists, abrasion of both ankles, and a broken tooth. During the six days he was hospitalized the treatment by Dr. Devine consisted mainly of sedatives administered to give him rest and relief from pain. The doctor testified that appellant exhibited no symptoms of brain injury; that X-rays taken at the hospital indicated he had a fractured sternum and a small chip of bone in the left wrist that was reported by the Roentgenologist as an old fracture. It was also the doctor's opinion that the bone fragment was the result of an old injury, and that none of the injuries he found were of such a nature as would probably result in permanent residuals.

The bone fragment was described by Dr. John Connell, who examined the X-rays, as about 1/8"' X 1/8"' in size and having a smooth surface. It was his opinion that the smooth contour of the chip indicated it had existed for some time prior to the date of the accident. The X-rays showed the wrist to be normal except for the small chip. Dr. Connell also examined X-rays taken August 8, 1950, which indicated that the detached piece of bone had remained...