Kinziger v. Chicago & Northwestern Railway Co.

146 N.W. 518, 156 Wis. 497, 1914 Wisc. LEXIS 133

• Court: Wisconsin Supreme Court
• Decided: March 17, 1914
• Status: Published

Opinions

BaeNes, J.

It has been thought advisable to set out a fairly full synopsis of tbe leading facts in tbe case in order to get an intelligent understanding of tbe contentions made by appellant’s counsel. He urges (1) that causes adequate to produce a floating kidney were shown to exist before tbe accident; (2) that tbe symptoms were tbe same before and after tbe accident; and (3) that tbe direct medical proof was to tbe effect that tbe floating kidney was of long standing when tbe February, 1912, operation was performed.

An extended discussion of tbe evidence would serve no useful purpose. It must we think be conceded that causes adequate to produce a floating kidney were shown to exist prior to tbe accident. Tbe symptoms before tbe 1906 operation and after tbe accident were tbe same except that tbe pain was much more severe after tbe accident than it bad been at any time before, and tbe evidence tended to show that there was no excessive voidance of urine prior to the injury in 1910. It is not seriously disputed that plaintiff suffered little if any pain in her side after the 1906 operation until she was injured. She testifies that her general health was good, and in this she is corroborated by her mother. It is true, her physician, Dr. Gaunt, testified that he treated her from the time of the second operation until after the injury. The evidence does not show how frequently he treated her or for what trouble, except he says he did not treat her for a pain in the side. During this interval she gave birth to a child and had a miscarriage. So it is apparent that she had need of a physician for ailments other than that of floating kidney. We have then a situation where sufficient causes to produce a floating kidney existed as early as 1905 and symptoms which, in view of the subsequent history of the case, strongly indicated that such was the trouble. But we also have a situation where the jury might well have found that for more than four years after the fruitless operation of 1906 the earlier symptoms had entirely disappeared and the plaintiff was in good health. Then came the fall adequate to produce the result found and the subsequent intense pain and suffering which induced the plaintiff to undergo three very serious surgical operations within a period of six months. The medical testimony leaves us entirely in the dark as to whether a kidney once displaced will return to its normal place without an operation. There is some testimony tending to show that, where there is a dislocation, conditions may be greatly aggravated by a blow on the back. It would appear to be reasonable enough to the layman that a fall such as plaintiff sustained would be very liable to seriously aggravate the condition of the kidney if it was not in a normal condition at the time. If the injury was sufficient, as the doctors testified, to dislocate a normal kidney, it might well produce serious consequences in an abnormal one. We conclude that there was a sufficient basis in the evidence for awarding substantial damages to the plaintiff and that the judgment entered cannot be held to give an excessive amount. The testimony of Dr. Minahan as to the long-standing character of the trouble cannot be considered controlling. It is of course a mere expression of opinion. His evidence showed that he observed the kidney through the peritoneum when Dr. Connell performed his operation, and no explanation is offered as to how it was possible to tell that the trouble was of more than eighteen months’ standing. Dr. Murphy, who sewed the kidney in place and who had a better opportunity to observe it than any one else, testified that the fall in 1910 was sufficient to produce the result which he found.

The evidence was sufficient to warrant the jury in finding 'that the train was brought to a standstill in a negligent manner. There was evidence strongly tending to show that the bump was an unusually hard one. Besides, there is one very persuasive item of evidence in the case. No one knew better than the conductor whether the stop was of the usual kind or whether it was unnecessarily violent. lie was in the caboose when the stop was made and was thrown from his chair by it. The plaintiff testified to what he said in reference to the stop. The statement was more emphatic than elegant and need not be repeated. It clearly indicated that the conductor thought the jar caused by the stop was neither usual nor necessary and that the engineer was not properly doing his work. The conductor does not deny making the statement, although he said he did not remember of having made it.

By the Court. — Judgment affirmed.