Osborne v. Montgomery

• Decision Date: 13 January 1931
• Citation: 203 Wis. 223,234 N.W. 372
• Parties: OSBORNE v. MONTGOMERY ET AL.
• Court: Wisconsin Supreme Court

203 Wis. 223

234 N.W. 372

OSBORNE

v.MONTGOMERY ET AL.

Supreme Court of Wisconsin.

Jan. 13, 1931.

Appeal from a judgment of the Circuit Court for Dane County; A. G. Zimmerman, Circuit Judge.

Action by Lester Osborne, by Oliver M. Osborne, his guardian ad litem, against Dudley Montgomery and others. Judgment for plaintiff, and defendants appeal.--[[[By Editorial Staff.]

Affirmed in part, and reversed in part, with directions.

Action begun December 23, 1929; judgment entered February 15, 1930. Automobile accident. On August 30, 1928, the plaintiff Lester Osborne, then a boy of thirteen years of age, was employed by the Wisconsin State Journal in running errands. He was returning to his place of employment on a bicycle. Traveling westerly on East Washington avenue, he turned northerly on Pinckney street, and as he proceeded north on Pinckney street he followed a car driven by the defendant. The defendant stopped his car for the purpose of leaving some clothing at a cleaner's. The defendant opened the door to his car intending to step from it on the left-hand side. The defendant's car at the time of the accident stood between a line of cars parked at the curb and the easterly rail of the street car tracks. As the defendant's car stopped and the door opened, and the plaintiff endeavored to pass, the right handle bar of his bicycle came in contact with the outside edge of the door, tipping the bicycle and throwing the plaintiff to the ground, causing the injuries complained of.

There was a jury trial, the jury found the defendant negligent as to lookout and the opening of his car door, but that he was not negligent in stopping his car where he did; that defendant's negligence was the cause of the injury; that the plaintiff was not guilty of contributory negligence; and assessed plaintiff's damages at $2,500. Judgment was entered upon the verdict, from which the defendants appeal.Schubring, Ryan, Clarke & Petersen, of Madison, and Saltzstein & Scheinfeld, of Milwaukee, for appellants.

Olin & Butler, of Madison, for respondent.

ROSENBERRY, C. J.

[1] The principal contention of the defendant here is that the plaintiff was guilty of contributory negligence as a matter of law; that the damages assessed by the jury are excessive; and that the court erred in its instructions to the jury in the particulars hereinafter stated. The evidence in the case presents a clear jury question as to whether or not the plaintiff was guilty of contributory negligence. A full recital of the facts would be of no especial value and the principles of law involved have been frequently stated and restated.

[2] The jury assessed the plaintiff's damages at $2,500, which covered pain and suffering and loss of earning capacity after he arrives at the age of twenty-one years. (Loss of earnings before he reaches twenty-one would be recoverable only in a separate action by the father.) The plaintiff sustained a double backward dislocation of the elbow joint and a fracture of the lower end of the humerus and suffered much pain in the days immediately following the accident. It is undisputed that the injury is to some extent permanent. There is a 10 per cent. loss of flexion and 5 per cent. loss of extension. The evidence of the plaintiff's doctor as to permanent injury was as follows:

“At the time of this examination a few days ago I found that there is a limitation in extension; a slight limitation in flexion, and an outward displacement of the arm at the elbow which is the same as it was at the time I examined him last April. * * * In view of the fact that the limitation has not changed since April to now, which is approximately eight months under ordinary use, I think you can safely say that it is a permanent condition. * * *

It is true that it might not be noticeable at all in a great mass of work which an ordinary individual will do.”

The medical evidence for the defendant was as follows:

“The only physical condition that I found was that about the left elbow; and I would say that there has been some interference with the motion of the arm at the elbow. That is, he is unable to extend the arm, that is, put it out straight, completely. There is what I would estimate a slight loss of extension; very close to normal; perhaps only about five per cent. It would handicap him very little.”

At the trial plaintiff testified that he could play hockey, chin himself, swim, that he could play his trumpet in the orchestra without putting it on his knee, and that he could play basketball and play catch with a baseball.

[3][4] It is considered that the damages awarded in this case are excessive and that the case will have to be reversed for that reason with directions to the trial court, in its discretion, to fix a minimum amount which would be the lowest amount a jury would be warranted in finding under correct instructions, with the option to the plaintiff to take judgment for that amount; or in the event that the trial court should determine that the minimum amount should not be fixed or being fixed, plaintiff shall decline to accept the option, for a new trial upon the question of damages; the judgment being in other respects affirmed. It is often thought that where a judgment is reversed because of excessive damages, this court should fix the minimum amount and not leave it to the trial court, without advice as to the opinion of this court upon the question. A moment's reflection, however, will convince any one that the trial court, who has had the injured party before it, who has heard all of the expert and other testimony in the case and is thoroughly familiar with the whole situation, is in a much better position to determine the minimum amount than is this court, which must act upon a printed record. It should be indicated in this case, however, that this court is of the opinion that $1,500 would constitute a maximum recovery for the damages in this case.

The defendant complains that the following instruction given by the court upon the subject of negligence was erroneous:

“1. By ordinary care is meant that degree of care which the great mass of mankind, or the type of that mass, the ordinarily prudent man, exercises under like or similar circumstances.

2. Negligence is a want of ordinary care.

3. Every person is negligent when, without intending to do any wrong, he does such an act, or omits to take such a precaution that, under the circumstances present, he ought reasonably to foresee that some injury or damage might probably result from his conduct. He is in duty bound to foresee all such natural consequences of his conduct as an ordinarily prudent and intelligent person would ordinarily foresee under the then present circumstances.

4. Negligence is a cause of injury or damage when it alone produces it, or co-operates with some other cause or causes in producing it jointly as a natural result.

5. There may be more than one cause of an injury or damage. The negligence of one person alone may produce it, or the negligence of two or more persons may jointly produce it.

6. Whether the boy, Lester Osborne, exercised due care under all the facts and circumstances disclosed by the evidence must be determined in the light of the care which is ordinarily exercised by children of the same age, capacity, discretion, knowledge and experience under the same or similar circumstances; but he must be held to the exercise of such care as the great mass of boys of his age, intelligence, experience and knowledge ordinarily exercise under the same or similar circumstances.”

We number the paragraphs for convenience.

It is conceded that that part of the instruction included in the third paragraph was approved in Hamus v. Weber, 199 Wis. 320, 226 N. W. 392; but it is urged that the instructions approved in that case were not correct and that in effect the Hamus Case overrules U. S. Fidelity & Guaranty Co. v. Verbergt, 197 Wis. 542, 222 N. W. 799, and Sommerfield v. Flury, 198 Wis. 163, 223 N. W. 408. In view of the criticism of the instructions given in this case, it is considered that the whole matter is entitled to a re-examination and reconsideration. The departure authorized in the Hamus Case came about because of the widespread conviction, particularly on the part of trial judges, that the approved instructions relating to proximate cause and reasonable anticipation, which had taken a more or less crystallized form, did not serve to enlighten the jury as to its duty and were often misleading and misunderstood. It was in the hope of introducing an instruction that would be more readily understandable by persons not skilled in the refinements of the law that the Hamus Case was written. We are convinced that what was said there needs some amendment.

[5] It is hardly necessary to say that we enter upon a discussion of this matter without any expectation of saying the final word in regard to it. It seems, however, not only proper but necessary to call attention to some fundamental considerations. The difficulty of dealing with the subject is vastly increased because the terminology of the law of torts is at present undergoing a decided change. The character of this change is exhibited more completely and thoroughly in the restatement being made under the auspices of the American Law Institute than elsewhere. Heretofore the law of torts in general has been stated in terms of applicable remedies rather than in terms of wrongful invasion of legally protected interests and the consequences thereof. It is apparent that the ultimate question being investigated in cases like this is whether or not the defendant is liable to the plaintiff in damages. Stated in terms often employed, this liability follows as a matter of law in the absence of contributory negligence or intervening cause when certain basic facts are ascertained: (1) Did the defendant fail to exercise ordinary care? (2) Except in a certain class of cases referred to later, under the...