Olson v. Siordia

130 N.W.2d 827, 25 Wis. 2d 274, 1964 Wisc. LEXIS 568
CourtWisconsin Supreme Court
DecidedOctober 27, 1964
StatusPublished
Cited by27 cases

This text of 130 N.W.2d 827 (Olson v. Siordia) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Olson v. Siordia, 130 N.W.2d 827, 25 Wis. 2d 274, 1964 Wisc. LEXIS 568 (Wis. 1964).

Opinions

Beilfuss, J.

These appeals present issues on whether there is credible evidence to support the jury’s finding that Olson was causally negligent; whether the trial court committed error in that it failed to clarify the jury’s apparent confusion as to the distinction between negligence and cause; and whether the damages awarded to Luisa Rodriguez and Frances Arias by the jury were excessive.

[278]*278 Credible Evidence to Support the Finding of Negligence.

Defendant Olson and his insurers concede that if the jury could have believed the testimony of Mr. Siordia it could have found Olson causally negligent. They contend that Siordia’s testimony is inherently incredible. They point to many contradictions in Siordia’s testimony and that of his supporting witnesses. Some of these inconsistencies can be explained by Siordia’s limited ability to speak or understand the English language.

The testimony and explanation of the collision by Siordia and Olson are grossly divergent. Olson contends that he was and had been traveling in the same lane as Siordia and that Siordia hit his vehicle from the rear. Siordia claimed that Olson sharply cut into the lane without warning and that the collision occurred. while Olson was attempting to cut in ahead of him.

Certain physical facts are relied on by Siordia to support the jury’s finding. The photographs reprinted in Siordia’s brief and supplemental appendix and Olson’s supplemental appendix indicate that the greatest amount of damage was done to the right rear fender of the Olson car and the left front fender of the Siordia car. Olson was driving a station wagon. The side panel window at the right rear of the station wagon was broken; the rear window above the tailgate was not broken. Lumber, which Olson had stacked lengthwise in his station wagon, was thrown out on the road. There was testimony indicating that the Siordia car came to a stop facing south with its right wheels about five inches off the pavement.

Although the facts recited above will support conflicting inferences, they are sufficiently corroborative of Siordia’s version of the accident to allow the jury to accept that version.

[279]*279The trial court approved the jury’s findings. There is no sufficient showing that the findings were based upon incredible evidence or unreasonable inferences. The findings as to liability are affirmed.

The Jury’s Confusion as to the Distinction Between Negligence and Cause.

After the jury had retired it came back out to ask the trial court for a clarification of the word “cause” as used in the special verdict, with particular reference to whether negligence presumed cause. The trial court repeated its instruction on cause, which was identical with Wis J I — Civil, Part II, 1500, and its instruction on comparison, which was identical with Wis J I — Civil, Part II, 1575. The jury foreman stated that he believed the questions were answered. The necessity and extent of reinstruction or clarifying instruction to the jury must rest in the sound discretion of the trial judge. We find no error nor abuse of judicial discretion.

We deem other assignments of error as to instructions to be without mérit.

The Excessive Damages.

(a) Luisa Rodrigues. The trial judge in his memorandum opinion on motions after verdict stated that the only injury of consequence sustained by Luisa Rodriguez was a fracture of the left forearm. He pointed out that the fracture healed well and that Mrs. Rodriguez’s main complaint regarded the development of tendinitis. He felt that Dr. Mitz’s testimony on the tendinitis question was not positive as to whether it resulted from the trauma of the accident or from carrying a cast on her arm. He also pointed out that Mrs. Rodriguez had been discharged from treatment by Dr. Mitz on June 5, 1961, and was not seen again by the doctor until July 26, [280]*2801963, and then for the purpose of evaluation rather than treatment. He concluded that the jury verdict was excessive.

Mrs. Rodriguez was sixty years old at the time of the accident and sixty-three at the time of the trial. She testified, through an interpreter, that she experienced a great deal of pain all during the course of her treatment; that the pain subsided about the date she was discharged from treatment ; and that the pain returned about two weeks thereafter. She testified that motion was considerably restricted in her left arm.

Dr. Mitz testified that during the course of treatment she developed tendinitis. He attempted to alleviate this condition with intramuscular injections of cortisone and physical therapy. He testified that the pain she felt during the course of treatment was due to a traumatic type of tendinitis of the left shoulder. In describing tendinitis Dr. Mitz explained that it was an inflammation of a tendon and that the degree of pain associated with it ranges from mild to severe depending upon the individual case. As to the pain suffered by Mrs. Rodriguez he testified, “It was severe, very severe.”

Regarding whether the tendinitis related to her original injury he stated:

“I believe it was either directly from the injury itself or indirectly associated with the cast itself.”

He was unable to state positively that the tendinitis was associated with the cast. Based on his June 26, 1963, evaluation he felt that Mrs. Rodriguez had pain and a permanent limitation of motion as a result of the injuries she sustained. Her permanent disability was a weakness and loss of muscle power in her left forearm.

In his memorandum opinion oh motions after verdict, the trial judge stated, “The doctor’s testimony as to the tendonitis [sic] was not positive as to whether it resulted from the trauma of the accident or whether it was from carrying the [281]*281cast on the arm.” There is no claim of negligent treatment by the physician. Counsel for the defendants conceded in oral argument that whether the tendinitis resulted from the accident or from the cast was immaterial.1

(b) Frances Arias. Mrs. Arias was eighty-six years old at the time of the accident and eighty-nine years old at the time of trial. Dr. Mitz examined her prior to trial and concluded that her general physical condition was so poor that she could not appear at the trial. Counsel for Mrs. Arias stipulated prior to trial that her inability to appear was not solely due to the injuries she had received in the accident.

Mrs. Arias was taken home from the scene of the accident. Relatives, including Mrs. Rodriguez, sat up with her all night that night. She was in great pain. The next morning' she was taken to a Milwaukee hospital. There it was determined that her right femur was fractured at the neck. Because of her age and the nature of the fracture it was necessary for the attending physicians to remove by surgery the head and neck of the femur and insert a stainless steel prosthesis. Doing this caused a spiral fracture to the shaft of the femur, which had to be held in place by metal plates and screws. The operation itself, because of Mrs. Arias’ age and general physical condition, constituted a critical hazard, but the record does not reveal that she was aware of this hazard. Thus, anxiety compensable as a part of her pain and suffering was not established.

Mrs. Arias’ postoperative course was very good.

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Bluebook (online)
130 N.W.2d 827, 25 Wis. 2d 274, 1964 Wisc. LEXIS 568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olson-v-siordia-wis-1964.