Sharp v. Milwaukee & Suburban Transport Corp.

• Decision Date: 08 January 1963
• Citation: 18 Wis.2d 467,118 N.W.2d 905
• Parties: Gladys Affett SHARP, Appellant, v. MILWAUKEE & SUBURBAN TRANSPORT CORP., a corporation, Respondent.
• Court: Wisconsin Supreme Court

Page 905

118 N.W.2d 905

18 Wis.2d 467

Gladys Affett SHARP, Appellant, v. MILWAUKEE & SUBURBAN TRANSPORT CORP., a corporation, Respondent.

Supreme Court of Wisconsin.

Jan. 8, 1963.

Schneiderman & Strnad, Milwaukee, for appellant.

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

CURRIE, Justice.

This is the third appeal in this action, the two former appeals being reported in 11 Wis.2d 604, 106 N.W.2d 274, and 15 Wis.2d 268, 112 N.W.2d 597.

The alleged errors which plaintiff contends require the granting of a new trial are:

(1) The trial court made a statement of uncontroverted facts to the jury which omitted certain facts, which plaintiff claims are uncontroverted and should have been included.

(2) The trial court erroneously interpreted this court's statement, 'that the door of the bus closed an inch or two above the elbow' to mean an inch or two above the uppermost portion of the elbow joint.

(3) The trial court erred in not sustaining plaintiff's objection to the hypothetical question put by defendant to Dr. Ansfield, its expert medical witness.

(4) The trial court erred in its instructions to the jury.

(5) The word 'disability' should have been included in question (c) of the special verdict.

Plaintiff also requests that this court exercise its discretion by granting a new trial in the interest of justice.

Court's Satement of Uncontroverted Facts.

At the commencement of the trial the trial court, in the absence of the jury, informed counsel for the parties that the court proposed to make a statement to the jury as to how the accident happened. The court then read its proposed statement, which was as follows:

'In the case of Sharp v. Milwaukee Transport Company, the court is now indicating to counsel that the statement of facts as to how the accident happened will be presented to the jury by the court, and it reads as follows:

'On voir dire examination the court informed you that you were to try the issues of damages that arose out of an accident which occurred on January 30, 1958, in the 600 block of West Wisconsin Avenue. You are to consider in this case the following facts as having been established:

'That on that date, January 30, 1958, Mrs. Gladys Affett Sharp was standing on the south side of the street in the 600 block on West Wisconsin Avenue waiting for a bus. The bus stopped. Some people boarded the bus and Mrs. Sharp also attempted to board the bus in the usual and customary manner. She had a portion of one foot on the bottom step and her arm was past the doorway when the doors to the bus closed. The doors closed on her right arm an inch or two immediately above the elbow. She pulled her foot out, but the bus proceeded one to one and a half feet before she pulled out her arm.

'It is your duty to listen to all of the evidence in this case and upon that evidence and the court's instructions to determine the nature and extent of Mrs. Sharp's injuries and the reasonable compensation she would be entitled to for such injuries.'

After reading this statement to counsel, the court then stated: 'At this time, gentlemen, if you wish to make a record, you may do so.' Counsel for plaintiff then moved, 'I move that in the court's description of the manner in which the accident happened it include that the plaintiff, to pull her arm out of the door of the bus, grabbed a pole with her left hand and pulled her arm out.' The court denied this motion and one by defendant's counsel that also proposed an amendment to the statement. Thereafter, the jury was recalled and the court read to it the same statement of facts that it had previously read to counsel in the absence of the jury.

At the first trial plaintiff had testified that when her right arm was caught between the bus doors she grabbed a nearby post with her left hand and jerked her arm out. There was no mention of any twisting of the right arm in that trial. At the second trial, with an assist from her counsel, plaintiff did testify with respect to a twisting as follows:

'Q. Referring back a moment to the time when you pulled your right arm out of the bus, will you describe in a little more detail exactly how you pulled it out?

'A. Well, from what I can remember, it happened in such a split second, my arm was in the bus door and then as it moved along this post was there and I grabbed this post and pulled back.

'Q. Then, as you describe it now, you are sort of twisting around; is that right?

'A. Yes, twisting.

'Q. So at the time you sort of twisted around so you could grab the pole with your----

'A. Left hand.'

Even this testimony is ambiguous as to whether her arm was twisted. Nevertheless, this testimony did not appear to be connected with the expert medical testimony given at the second trial. Thus, this court in its opinion in the second appeal (at 15 Wis.2d pages 272-273, at 112 N.W.2d page 600) quoted a portion of plaintiff's uncontroverted testimony given at the first trial as to how the accident happened. Her further testimony concerning her grabbing the pole with her left hand was not recounted apparently because her counsel did not stress this testimony in his argument and brief.

On this third appeal, plaintiff's counsel now urges that the incident of plaintiff's grabbing the pole with her left hand is highly material. This is because of medical testimony at the third trial that a tennis-elbow condition can be caused by a blow to the elbow or by a 'twisting injury with force applied to the ligaments about the elbow and muscles on the outer portion of the elbow. * * *' This testimony had no connection with the case, however, because of the absence in the record of any testimony that plaintiff's arm had been twisted during the course of the accident.

The trial court did not err by confining the statement of facts, which it read to the jury, to those stated in our opinion on the second appeal. Plaintiff was not thereby precluded from testifying as to details of how the accident occurred. The trial court pointed this out in its memorandum opinion on motions after verdict. If, however, plaintiff had testified that her right arm was twisted as a result of her claimed grabbing of a pole, the door would have been opened to defendant to contradict this testimony with that of two witnesses who were standing close by when the accident occurred. This is because of the absence of any testimony about twisting at the first trial.

Location of Blow to Plaintiff's Elbow.

Plaintiff's counsel voiced no objection to the trial court's use of the phrase 'an inch or two immediately above the elbow' in describing the place that the bus doors closed on plaintiff's arm. Plaintiff's counsel contends, however, that this distance of an inch or two is to be measured from the tip of the elbow; whereas the trial court, as appears from its memorandum opinion, concluded that the elbow was a joint and 'that an inch or two above this joint can in no wise constitute an impact on a portion of the joint itself.' During oral argument, defendant's counsel expressed a willingness that this measurement be made from the tip of the elbow as contended by plaintiff's counsel. Nevertheless, assuming that the tip of the elbow is the proper point from which to measure 'an inch or two immediately above the elbow,' we are unable to find any instance during the course of the third trial in which this difference in points of measurement prejudiced plaintiff or specifically apprised the jury of the trial court's use of a different point of measurement.

Plaintiff's counsel contends that the trial court's interpretation of the point of measurement prejudiced plaintiff at four different points during the third trial as follows:

(1) Dr. Ansfield, defendant's expert medical witness, testified that if a tennis- elbow condition occurred by trauma, a blow had to occur where the muscle in the forearm attaches to the bony prominence on the outer side of the elbow. When the point at which this muscle attaches became inflamed, he stated, the result was a tennis-elbow condition. Defendant's counsel then asked the following question:

'Q. Now, Doctor, if a blow or trauma was on the upper side of the arm an inch or two above the elbow, do you have an opinion to a reasonable degree of medical certainty whether that type of blow or trauma would produce or cause a tennis elbow condition?'

Plaintiff's counsel objected solely on the ground that the question did not 'include all the relevant, material facts.' This objection was overruled. Dr. Ansfield then answered that such a blow would not in his opinion produce a tennis-elbow condition. Defendant's counsel then put a long hypothetical question to Dr. Ansfield, which contained the following statement with reference to the point of impact: 'the doors of the bus closed on her right arm about an inch or two inches above her elbow.' Plaintiff's counsel again objected on the ground that the question did not include 'all relevant, uncontroverted facts.' This objection was also overruled. Dr. Ansfield then answered that he did have an opinion which was to a reasonable medical probability that plaintiff's symptoms of tennis elbow were attributable to her occupation.

We fail to perceive any error in the foregoing incident. The objections of counsel for plaintiff did not assert that any fact was wrongly stated in the hypothetical questions with respect to the location of the blow to plaintiff's arm. Had such an objection been made, it would not have been well founded.

(2) Plaintiff's counsel questioned Dr. Ansfield during cross-examination as to his assumptions in connection with his prior testimony concerning the meaning of the phrase 'an inch or two above the elbow.' The pertinent questions and answers are as follows:

'A. I assumed an inch or two above the elbow is not precisely over this external epicondyle but rather above it. It was on the arm, not at the elbow.

'Q. Then you are assuming an inch or two...