Sharkey v. Michels

• Court: Wisconsin Supreme Court
• Writing for the Court: MARTIN
• Citation: Sharkey v. Michels, 254 Wis. 502, 36 N.W.2d 690 (Wis. 1949)
• Decision Date: 12 April 1949
• Parties: SHARKEY v. MICHELS et al.

254 Wis. 502

36 N.W.2d 690

SHARKEY

v.MICHELS et al.

Supreme Court of Wisconsin.

April 12, 1949.

Appeal from a judgment of the Circuit Court for Green Lake County; Bruce F. Beilfuss, Judge.

Affirmed.

The plaintiff, Edward Sharkey, brought suit for property damage to his vehicle and for personal injuries sustained as a result of an automobile accident and on September 23, 1948, recovered judgment in the amount of $5,881.52. The action was commenced on December 9, 1947. Clayton P. Michels and State Farm Mutual Automobile Insurance Company, defendants-appellants, on this appeal are concerned only with the matter of damages for personal injury and causation and not with any other question of liability.

The two car accident occurred in the intersection of Pearl and Huron streets in the city of Berlin, Wisconsin, at approximately 7:45 p. m. on Saturday, March 1, 1947. The plaintiff, while traveling north into the intersection at five miles per hour, after starting from an arterial stop sign, was struck by defendant traveling east at twenty to twenty-five miles per hour. The left front of defendant's car struck the rear of the left door and left rear fender of plaintiff's 1937 Chevrolet coupe. The impact tilted the plaintiff's car so that the left rear wheel seemed to raise about two feet off the roadway. Neither car overturned and the vehicles were still in contract with each other when they came to rest after the accident. Other material facts will be stated in the opinion.

At the close of the evidence in the trial court, the defendants moved that the answer to question 6 of the special verdict (causation) be answered by the court ‘No,’ which motion was denied. The jury returned a special verdict finding in question 6 that the injuries sustained by the plaintiff were the natural and probable result of the accident of March 1, 1947, and assessed damages to the plaintiff as follows:

+-------------------------------------------+
                ¦(a)¦Damage to his car            ¦         ¦
                +---+-----------------------------+---------¦
                ¦   ¦Answered by the court        ¦$119.75  ¦
                +---+-----------------------------+---------¦
                ¦(b)¦Medical and hospital expenses¦         ¦
                +---+-----------------------------+---------¦
                ¦   ¦Answered by the court        ¦485.25   ¦
                +---+-----------------------------+---------¦
                ¦(c)¦Hired help                   ¦         ¦
                +---+-----------------------------+---------¦
                ¦   ¦Answered by the court        ¦88.45    ¦
                +---+-----------------------------+---------¦
                ¦(d)¦Pain and suffering           ¦$4,000.00¦
                +---+-----------------------------+---------¦
                ¦(e)¦Permanent injuries           ¦$8,000.00¦
                +-------------------------------------------+
                

The trial court ruled that the jury awards for pain and suffering and permanent injuries were excessive and ordered a new trial on the matter of damages unless the plaintiff, within ten days, elected to take judgment against the defendants for the reduced amount of $2,500 for pain and suffering, and $4,000 for permanent injuries. The plaintiff elected to take judgment in the reduced amount, less the twenty per cent contributory negligence as found by the jury.

Roberts, Roe & Boardman, of Madison (Walter M. Bjork, of Madison, of counsel), for appellant.

J. L. McMonigal, of Berlin, for respondent.

MARTIN, Justice.

The first question on this appeal is whether there is ample credible evidence to support the finding of the jury on the question of causal relation between the accident of March 1, 1947, and the injuries complained of by the plaintiff. A consideration of the relevant facts is necessary.

The plaintiff testified that at the moment of the impact, his car went up on its right wheels and as it settled back he struck his head about two or two and one-half inches above his left ear on the window frame of the left door. It was with sufficient force as to render him unconscious for a least two minutes. It is conceded that except for an area of tenderness at the site of the blow, there was no objective evidence of injury. According to Sharkey's testimony, he had an awful pain in his head. If someone had asked him to do something, he could not have done it. He did not know where he was for awhile. Everything was dark in front of him. He tried to take the license number of the other car but could not do so because he could not see four feet ahead of him. He was dizzy. That condition lasted from ten to fifteen minutes. He then parked his car at the curb, walked about two blocks to the city hall to place a long distance telephone call, walked back to his car, and drove to his insurance agent's house to report the accident. He then drove his car home, which is about one and one-half miles from the city hall. The evidence is clear, therefore, that the plaintiff sustained some injuries. The issue is whether they were as serious and as extensive as claimed by him. Dr. Bennett, defendant's medical examiner, testified that she believed plaintiff told the truth about his complaints.

Plaintiff testified that since the accident he has experienced continual headaches, dizziness, sleepiness, grinding noise in the left side of his head, a loss of hearing in his left ear, and an inability to do any work, especially bending over to the left, and that his condition has not improved.

Three days following the accident, March 4, 1947, and about forty times subsequently, plaintiff was attended by Dr. H. C. Koch, his family physician. He then went to a doctor specializing in ear, nose, and throat practice at Oshkosh, Wisconsin, and was by that doctor referred to Dr. Quade, a neurologist at Neenah, Wisconsin. He was admitted to Wisconsin General Hospital on December 9, 1947, where he was hospitalized for about nine days and given extensive examination and treatment.

Dr. Koch testified as follows:

‘Q. Mr. Sharkey testified he subsequently went to Dr. Quade. When did you next see him? A. I saw him on July 12th after he had been to see Dr. Quade. He wasn't able to work; he still complained of noises in his head and almost continuous headaches.

‘Q. Up to this time had you been able to make a definite diagnosis of this condition? A. No, except it was one of those group of symptoms that follows head injury very often.

‘Q. What do they call that doctor? A. They call that a post-traumatic cerebral syndrome.

‘Q. And what does it mean, for the benefit of us laymen? A. It simply means he got a bump on his head which must have injured some part of his brain or nervous system which causes the symptoms.'

See Buschman v. Olson, 1947, 251 Wis. 635, 639, 30 N.W.2d 252, for a similar problem confronted by the attending physician.

Dr. Koch testified further relating to the absence of laceration, swelling, and bleeding:

‘Q. The first time you examined him did you find any external evidence of injury? A. No, there were no cuts that I seen.

‘Q. Any swelling or bruising? A. There is no record of any.

‘Q. What is the medical probability of a person sustaining an injury to the head without those external signs? A. Oh, it is very common.'

Dr. Coon, superintendent of the Wisconsin General Hospital, did not testify, but the evidence shows his diagnosis a ‘post-traumatic Meniere's syndrome...