#### Slack, Respondent, vs. Joyce, Appellant.

*May 24*

*June 13, 1916.*

*Negligence: Injuries: Collision between automobile and bicycle: Contributory negligence: Evidence: Habitual carefulness of chauffeur: Damages: Resulting illness: Excessive damages.*

1. In an action for injuries sustained in a collision between plaintiff’s bicycle and defendant’s automobile, findings by the jury that defendant was negligent and plaintiff free from contributory negligence are *held*to be sustained by the evidence.

2. Evidence offered by defendant to show that her chauffeur was an unusually careful, painstaking driver with regard to persons or vehicles on the street was properly excluded as incompetent.

3. It appearing that four or five weeks after the accident plaintiff contracted typhoid fever, and that food, water, and air are the only media by which typhoid can be communicated, testimony of the attending physician that in his opinion there was a connection between plaintiff’s sickness and the accident and that he considered this all the time, but not explaining what he meant by “connection” between them, was insufficient to warrant the *568jury in finding that the disease was caused by or had any connection with the injury. To form a basis for damages in such a case, the connection must rest upon proof and cannot be lgft to surmise or conjecture.

4. It appearing that plaintiff’s injuries, aside from the disease not shown to have been caused by the accident, consisted of slight cuts and bruises which healed very quickly and a pain in the side which had disappeared in three months, an award of $725 is *held*excessive and he is given an option to take judgment for $400 or a new trial.

Appeal from a judgment of the circuit court for Ashland county: G. N. Risjobd, Circuit Judge.

*Reversed.*

This action was brought to recover damages for personal injuries sustained by plaintiff while riding a bicycle, the injuries resulting from a collision between plaintiff’s bicycle and defendant’s automobile, alleged to have been due to defendant’s negligence. The jury returned the following verdict :

“(1) At what point did the collision between the plaintiff’s bicycle and the defendant’s automobile occur ? *A.*About twelve feet south of the telephone pole.

“(2) Was the driver of defendant’s automobile in the exercise of ordinary care in driving and managing it at the time of the collision between the automobile and plaintiff’s bicycle ? *A.*No.

“(3) If your answer to the foregoing question is 'No,’ then was such want of ordinary care the proximate cause of plaintiff’s injury? *A.*Tes.

“(4) Was plaintiff guilty of any want of ordinary care which contributed proximately to his injury ? A. No.

“(5) At what sum do you assess plaintiff’s damages? *A.*$725.”

Judgment was rendered on the verdict in favor of plaintiff, from which this appeal was taken.

*William F. Shew,*for the appellant.

For the respondent there was a brief by *Jdhn Garvin,*attorney, and *Lamoreux & Gate,*of counsel, and oral argument by *O. A. Lamoreux.*

*569KeewiN, J.

Tbe appellant insists tbat tbe judgment should be reversed for tbe following reasons: (1) because tbe undisputed evidence acquits defendant of negligence; (2) because plaintiff was guilty of contributory negligence; (3)' because tbe court erred in excluding evidence offered by defendant; (4) because tbe court misdirected tbe jury; (5) because tbe damages are excessive.

1. On tbe question of wbetber tbe evidence was sufficient to show negligence on tbe part of tbe defendant and contributory negligence on tbe part of tbe plaintiff we are of opinion tbat tbe verdict must stand. Tbe accident occurred on tbe 18tb day of September, 1914, in tbe city of Ashland, and tbe main dispute appears to be wbetber tbe automobile ran into tbe bicycle or tbe bicycle ran into tbe automobile. An examination of tbe record shows tbat there was a sharp conflict between tbe evidence on tbe part of tbe plaintiff and tbat on tbe part of tbe defendant. Tbe jury found tbat tbe defendant was negligent and tbat tbe plaintiff was free from contributory negligence. Tbe court below sustained these findings, and under tbe well established rule of this court we do not feel warranted in disturbing them.

2. Counsel for defendant assign error in tbe exclusion of evidence. Defendant offered to show tbat her chauffeur was an unusually careful, painstaking driver with regard to persons or vehicles in tbe street. This evidence was ruled out as incompetent and tbe ruling is complained of. We think there was no error in tbe ruling. *Koenig v.*Sproesser, 161 Wis. 8, 152 N. W. 473; Jones, Ev. §§ 148 (147), 163 (161).

3. It is further ‘insisted tbat tbe judgment should be reversed on account of error in misdirecting tbe jury. It is claimed tbat tbe charge to tbe jury on tbe question of damages was erroneous in two respects: one with regard to tbe disease plaintiff contracted after being injured, and tbe second as regards bis earnings. It appears from tbe evidence tbat some four or five weeks after tbe accident tbe plaintiff contracted ty-*570pboid fever, and it further appears that food, water, and air are the only media by which typhoid can be communicated. The only evidence upon this subject is the testimony of Dr. Ilosmer as follows: “Typhoid is usually caused by drinking polluted water. It might be caused by food — any food with a typhoid germ. In my,opinion there was a connection between plaintiff’s sickness and the accident. I don’t know when I discovered it. I considered it all the time.” Upon this evidence the court charged the jury that:

> “There was some evidence received in the case of temperature and pain suffered by the plaintiff coming on some weeks after he left the hospital, and whether that illness was caused by the accident or not is a question for you to determine in assessing damages. You cannot assess damages for that illness unless you are reasonably certain from the evidence that such illness resulted directly from the injury he received.”

This instruction referred to the typhoid fever contracted by plaintiff after leaving the hospital. The question under this instruction is whether there was sufficient evidence to warrant the jury in finding that the disease contracted several weeks after the injury was caused by such injury. We think the evidence insufficient to warrant the jury in finding that the disease was caused by or had any connection with the injury. It appears from the evidence that typhoid fever is neither the natural nor probable result of physical injury such as plaintiff sustained, and the only evidence in the case is that referred to of Dr. Ilosmer to the effect that there was a connection between plaintiff’s sickness and the accident; that he considered this all of tire time; but he does not say that the injury caused the disease, and he does not explain what he means by connection between the illness and the injury. The connection between the disease and the injuries, in order to form a basis for damages, cannot be left to surmise or conjecture but must rest upon proof. *Kinziger v. C.*& *N. W. R. Co.*156 Wis. 497, 146 N. W. 518; *Gray v. C. & N. W. R. Co.*153 Wis. 637, 142 N. W. 505; *Wilber v. Fol-**571*lansbee,*97 Wis. 577, 72 N. W. 741, 73 N. W. 559; *Hirte v. Eastern Wis. R. & L. Co.*127 Wis. 230, 106 N. W. 1068; *Schmidt v. Pfeil,*24 Wis. 452. Aside from tbe disease contracted some weeks after tbe accident tbe injuries were slight and consisted of some cuts and bruises wbicb bealed in a very short time, and under the evidence tbe. pain in tin? side seemed to have disappeared in December, 1914.

In view of tbe fact that tbe evidence was not sufficient to warrant tbe jury in finding that tbe disease contracted by plaintiff was caused by tbe injury tbe damages are excessive. That portion of tbe charge referred to was erroneous. We have therefore concluded to give plaintiff tbe option to take judgment for $400 damages, and in case of bis failure to so elect a new trial is ordered.

*By the Court.*— Tbe judgment of tbe court below is reversed, and a new trial granted, unless tbe plaintiff, within twenty days from notice of filing of the remittitur, shall file bis consent in writing with tbe clerk of tbe court to modify tbe judgment by inserting bis damages at $400 in lieu of $725, in which event tbe judgment is so modified as of tbe date of entry. Tbe appellant is entitled to costs in this court.