Wendel v. Little
| Decision Date | 28 November 1961 |
| Citation | 15 Wis.2d 52,112 N.W.2d 172 |
| Parties | Harvey L. WENDEL, Appellant, v. Glenn E. LITTLE, a minor, by his gdn. ad litem, William Johnson et al., Respondents. |
| Court | Wisconsin Supreme Court |
Action by plaintiff Harvey L. Wendel against defendants Glenn E. Little, a minor, by his guardian ad litem, William Johnson, and Herman Mutual Insurance Company, to recover damages for personal injuries sustained in a collision between automobiles driven by Wendel and Little. The trial was to a jury, with a special verdict submitted. The trial court answered Questions 1 and 2, finding as a matter of law that Little was causally negligent with respect to lookout, yielding the right of way, stopping before entering an intersection, and speed. By its answers to Questions 3 and 4 the jury found plaintiff causally negligent with respect to lookout and speed. In answer to Question 5 the jury apportioned 80 per cent of the negligence to Little and 20 per cent to the plaintiff, one juror dissenting. By its answer to Question 6 the jury found plaintiff's damages to be $1,000, two different jurors dissenting.
At this point the jury's verdict was defective, in that the same ten jurors had not agreed on answers to all the questions necessary to support a verdict, as required by sec. 270.25(1), Stats.
Prior to submission of the case to the jury and after the close of testimony, counsel for plaintiff as a defendant in a companion case moved the court for a directed verdict, that as a matter of law Wendel was not negligent as to lookout. Counsel also requested that the court not submit to the jury questions as to Wendel's negligence with respect to management and control and speed. Counsel for Wendel as plaintiff in this case joined in the motion. The trial court reserved its ruling.
The special verdict was returned but before accepting it the trial court ruled on the prior motion pertaining to Wendel's negligence. It changed the answers to Questions 3 and 4 from 'yes' to 'no,' ruling as a matter of law that Wendel was not negligent as to lookout or speed. The court then struck the comparison question from the special verdict as being surplusage. As the verdict now stood, the same ten jurors had agreed on answers to all questions necessary to support the verdict.
On motions after verdict the plaintiff moved for a new trial on the grounds, among others, that the verdict was fatally defective, and that it was perverse because of inadequate damages. This motion was denied. The defendant moved for judgment on the verdict and also agreed to pay plaintiff the full amount of the damages found by the jury, i. e., $1,000, rather than 80 per cent of that sum. This motion was granted. Judgment on the verdict was entered in favor of the plaintiff for $1,000 plus costs, and from this judgment plaintiff appeals.
Further facts will be stated in the opinion.
Riley, Riley & Pierce, Madison, for appellant.
William E. Johnson, Swingen, Stern & Lenahan, Madison, for respondents.
The collision occurred at about 12:25 a. m. on October 25, 1959 at the intersection of Park and Regent streets in the city of Madison. Little was traveling east along Regent street while Wendel was proceeding north on Park street. Little's car struck Wendel's car in the middle of the left side. The impact caused Wendel to be thrown from his car onto the pavement. He landed on his left side, hitting his arm, head and shoulder.
At the time of the accident Wendel was an undergraduate student of the University of Wisconsin. At the time of trial he was a student at the University of Wisconsin Law School and was 22 years of age.
Appellant raises two questions on this appeal. The first contention is that he is entitled to a new trial on the ground that the damages found by the jury were inadequate.
In reviewing a jury's verdict on damages this court must rely primarily on the good sense of the jurors. Where the question is a close one it should be resolved in favor of the verdict. The trial court has an advantage over the appellate court in that it sees the witnesses and hears the testimony and has an opportunity to observe the injured person. Makowski v. Ehlenbach (1960), 11 Wis.2d 38, 103 N.W.2d 907.
Wendel testified that immediately after the accident he was emotionally upset and experienced a throbbing pain in his head, arm and fingers. The day after the accident he sought medical attention and his arm was placed in a sling which he wore for a week. He testified that these injuries interfered with his sleep and studying. He also experienced pain and stiffness in his neck. He was given a neck collar by a doctor, which he wore four to six weeks. This device was very uncomfortable and caused a skin rash.
Appellant alleged that the accident resulted in permanent injury to his spine, causing him to suffer repeated headaches, stiffness in the neck and loss of sleep. He also alleged past and future medical expenses.
Wendel testified that at the time of trial he was still experiencing headaches and stiffness in the neck which, besides causing physical discomfort, interfered with his studying.
Dr. Rounds, a radiologist, testified for appellant. He had taken X-rays of Wendel about eight or nine days after the accident. He testified that the X-rays disclosed:
On the basis of Wendel's medical history, his complaints, and the X-rays, Dr. Rounds testified that it was his opinion the injuries of the appellant were related to the accident. He testified that as a result of this condition, muscle spasm, pain and limitation of neck motion would ensue. He also testified that the X-rays indicated a slight arthritic condition in the upper spine which could have resulted from the injuries suffered in the accident. It was brought out that Dr. Rounds did not compile an extensive case history on Wendel. The subjective symptoms related by Wendel were part of the basis on which Dr. Rounds gave his opinion, though his opinion was based 95 per cent on the X-rays. Dr. Rounds also testified that it was possible Wendel had had a prior neck injury. He believed the injuries could have been caused by the accident, but they could stem from some other cause. He testified that a chronic throat condition could cause or contribute to muscular changes of the cervical spine such as appellant's X-rays showed.
Dr. Juhl, a radiologist, testified for the defense. He related that he had recently engaged in research concerning the cervical spine. He testified that from his research study he found:
'* * * there were a number of minor variations occurring in the normal [cervical spine] which had by most writers on the subject been considered abnormal in the past.'
Dr. Juhl examined the X-rays of Wendel and testified that the irregularities of the spine shown by the X-rays could exist in a normal person, a person with no history of injury. He also testified that the irregularities could have been caused by injury.
Dr. Miller, an orthopedic surgeon, testified for the appellant. He examined and treated Wendel about ten days after the accident; he was of the opinion that Wendel had an injury to his neck and that it resulted from the accident. He testified that Wendel's neck injury would probably be permanent and would result in pain and limitation of motion. It was brought out that Dr. Miller's opinion was based largely on the subjective symptoms of Wendel. The only objective findings were a muscle spasm in Wendel's neck and the X-rays. It was also brought out that Wendel failed to inform Dr. Miller of his past medical history with respect to a recent back strain, a prior tonsilectomy and a possible adenoidectomy. Dr. Miller also testified that he wrote a letter to the Army about six months after the accident stating that Wendel was able to participate in military training.
Dr. Hanson, an orthopedic surgeon, testified for the defense. He examined Wendel the day of the accident at...
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