Sharp v. Milwaukee & Suburban Transport Corp.

• Decision Date: 29 December 1961
• Citation: 112 N.W.2d 597,15 Wis.2d 268
• Parties: Gladys (Affett) SHARP, Respondent, v. MILWAUKEE AND SUBURBAN TRANSPORT CORP., a corporation, Appellant.
• Court: Wisconsin Supreme Court

Page 597

112 N.W.2d 597

15 Wis.2d 268

Gladys (Affett) SHARP, Respondent, v. MILWAUKEE AND SUBURBAN TRANSPORT CORP., a corporation, Appellant.

Supreme Court of Wisconsin.

Dec. 29, 1961.

Mrs. Sharp, then Mrs. Affett, brought action against the Milwaukee and Suburban Transport Corp. for damages for personal injuries sustained January 30, 1958. She alleged that while she was boarding one of defendant's buses the operator negligently closed the door on her right arm and moved forward, causing injuries including traumatic lateral epicondylitis of the right elbow. Defendant denied information sufficient to form a belief as to these allegations. After the first trial the jury rendered a general verdict for plaintiff in the amount of $13,500. Defendant appealed from the judgment entered thereon.

This court decided that certain argument to the jury on the subject of damages had been improper and that the amount of the verdict was excessive under any view of the evidence. Our mandate was: 'Judgment reversed and a new trial granted on the issue of damages only.' ¹

After the second trial the jury rendered a special verdict awarding $1,200 for pain, suffering and disability to the date of trial, nothing for future pain, suffering and disability, $100 for medical and drug expense, and $73 for wage loss. On motions after verdict, Judge Landry, who presided at the second trial, concluded that defendant had introduced evidence on issues going beyond the proper scope of the new trial granted by this court. On June 19, 1961, an order for a new trial was entered. Defendant appealed.

Further facts will be referred to in the opinion.

Kivett & Kasdorf, Milwaukee, John M. Swietlik, Milwaukee, of counsel, for appellant.

Schneiderman & Strnad, Milwaukee, for respondent.

FAIRCHILD, Justice.

It is conceded that plaintiff suffers from tennis elbow (epicondylitis) and apparently the condition will not improve. There is testimony that a tennis elbow may be caused by a blow or may be caused by certain types of repetitive work involving excessive use of certain muscles. It is clear that the first jury found that the impact of the door on plaintiff's arm caused the tennis elbow and that the second jury found it did not.

Plaintiff's position is that the first trial and the partial approval of the verdict implied in our decision on appeal established beyond further dispute that the impact caused the tennis elbow. She requested an instruction to that effect on the second trial and objected to certain evidence to the contrary.

Defendant's position is that it was entitled to prove that the tennis elbow was not caused by the impact of the door on plaintiff's arm. It did this in two steps:

(1) By testimony tending to show that the door had impact with plaintiff's right forearm or wrist and not above the elbow as testified by the plaintiff, and

(2) By offering expert testimony that the type of work performed by plaintiff in her employment would, without any history of injury to the outer side of the elbow, be the logical cause, and that the closing of the door on the forearm just above the wrist could not cause the tennis elbow.

Thus the argument revolves around the scope of the phrase in our mandate 'issue of damages only.' The driver's negligent shutting of the door caused an impact with plaintiff's arm; that impact and the forward movement of the bus allegedly caused the tennis elbow as well as the temporary effects described. Defendant contends that the 'issue of damages' includes all questions as to what resulted from the driver's negligence, including the location on plaintiff's arm of the impact with the door. Plaintiff would exclude from the 'issue of damages' all questions as to whether the tennis elbow was caused by the driver's negligence.

It is necessary to examine the questions dealt with in the former opinion in order to determine the scope of the 'issue of damages' referred to in our mandate.

On the first appeal the following points were raised in the briefs on behalf of defendant:

(1) Impropriety of use of a blackboard and a per diem formula in argument on pain and suffering;

(2) Perversity and excessiveness of the verdict of $13,500;

(3) Refusal of the trial court to give a requested instruction as to the facts which plaintiff must prove with respect to the occurrence of the accident;

(4) Error in instructing the jury on a loss of earning capacity because (a) there was no testimony as to loss of income and (b) the testimony of plaintiff's medical expert would not support the finding that the blow to the arm caused the tennis elbow;

(5) Giving an incorrect form of instruction with respect to loss of earnings;

(6) Refusal to allow a hypothetical question to be put to defendant's medical expert inquiring as to the cause of the tennis elbow and excluding the happening of the accident from the hypothesis, and

(7) Giving an instruction which allegedly assumed the occurrence of the accident.

The opinion on appeal includes discussion and decision of points numbered 1, 2, 3, and 7. On page 616 of 11 Wis.2d on page 281 of 106 N.W.2d it referred to the cases cited by defendant with respect to point 4(a), but stated that this need not be decided because there must be a new trial. The opinion also stated, at...