McCoy v. Milwaukee St. Ry. Co.

• Decision Date: 25 May 1894
• Citation: 59 N.W. 453,88 Wis. 56
• Parties: MCCOY v. MILWAUKEE ST. RY. CO.
• Court: Wisconsin Supreme Court

88 Wis. 56

59 N.W. 453

MCCOY

v.MILWAUKEE ST. RY. CO.

Supreme Court of Wisconsin.

May 25, 1894.

Appeal from superior court, Milwaukee county; R. N. Austin, Judge.

Action by John McCoy, an infant, by his guardian, against the Milwaukee Street-Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Action for personal injury. The plaintiff claims the facts to be as follows: That the plaintiff, a messenger boy, about 17 years old, was riding on horseback along a street on which the defendant operated its street railway, when the horse slipped and fell; that the horse fell onto the plaintiff in such a way as to confine him to the ground, and very near to the defendant's track; that one of defendant's cars, drawn by horses, was coming towards the plaintiff, and distant from him about half a block, at the time when the horse fell; that the whole situation was in plain sight of the defendant's car driver; that the car was not stopped, but continued on its course past the plaintiff; that in keeping his head from under the wheels as the car passed him, his arm in some way was crushed by the wheels. The plaintiff's own testimony had some corroboration. The defendant's theory of the accident was that the plaintiff was coming from the rear of the car; and that, while attempting to pass and get ahead of the car, his horse fell at the side of the car, and he was thrown against the car and pavement, and so received his injury without the knowledge or fault of the car driver. There was a special verdict, with damages assessed at $4,000. There was judgment for the plaintiff upon the verdict, from which the defendant appeals.Miller, Noyes & Miller, for appellant.

Turner & Timlin, for respondent.

NEWMAN, J. (after stating the facts).

The first error claimed is this: The plaintiff was permitted to testify, over defendant's objection, that he had learned no business or trade, that he had no education, and could not do office work. It was understood that this evidence was intended to bear upon the question of the amount of the plaintiff's damages. An authority cited by the appellant on the subject, 2 Thomp. Neg. 1257, says: “The jury, looking to all the circumstances of the case,--his former occupation, its nature, the money or other benefits derived therefrom, and the extent to which his capacity to follow that or any other calling to which he is fitted is impaired by the wrong of the defendant,--must assess his damages at a sum which will compensate him for the injury suffered.” In order to be able to judge fairly how much his capacity to earn money and to get a living has been impaired, it would seem that the jury should be informed by evidence of his qualifications and capacity to follow his former or some other calling. It would seem to be competent to inform the jury by evidence what fitness he had for following his former or some other business, both before and after his injury, in order to enable the jury fairly to estimate his damages. The fact that he had no education or trade is relevant upon such an inquiry.

The second error claimed is that the defendant's expert witness was not permitted to give his opinion as to what would have been the effect upon the plaintiff's arm if the car wheels had run over it. It was not claimed by the plaintiff that the wheels did run over his arm. He claimed that the wheels in some way caught and crushed his elbow, and left him with a stiffened, and comparatively useless, arm. This does not seem to have been seriously disputed. It could really throw little light upon the extent of the injury, or the precise manner of its infliction, to show that the arm would have been severed if the wheels had actually passed over and across it. So the proposed evidence had little relevance. If relevant, it was not a subject for expert testimony. It is a matter of common knowledge that a car wheel passing over a man's arm, which lies across the track, will probably cut the arm off. The evidence could not have enlightened the jury upon that subject.

The plaintiff was permitted, over the defendant's objection, by cross-examination of the defendant's witness the car driver, to show that it was a part of the driver's duty to see that the passengers put their fares in the box, and that sometimes, in attending to that duty, he had to turn around so as to face the car. This is claimed as error. Doubtless a large latitude must be permitted on cross-examination. The intelligence and memory of the witness, his opportunity and accuracy of observation, his attention or want of attention, are all proper subjects of investigation on cross-examination. This tends to make clear the degree of credence to which the statements are entitled. Whether he was in a situation to give undivided attention, or whether his attention was liable or likely to be diverted by other duties, are certainly proper subjects of inquiry. And this is none the less competent, but may be more important, in a case where it cannot be shown with entire certainty what...