#### Karasich vs. Hasbrouck and another.

PRACTICE. (1-3) *Printed Case on appeal.*

Instructiohs to Jury. (4) *Repetition of instructions.*

Negligence. (5, 6) *Pule as to contributory negligence.*

Damages. (7) *Injury to person; whether da/mages excessive.*

1. In jury cases, where there is conflicting testimony, it need not be set out in full in the “printed case” upon appeal; but it is sufficient to state therein what facts it tends to prove, and refer to the folios in the bill of exceptions where it can be found.

2. Where all questions and answers are taken down by a phonographic reporter, the judge settling the bill of exceptions may, in his discretion, require the testimony to be put into *narrative*form.

3. In cases where this court is required to review the finding of facts by the court below, and where it may be necssary to print the testimony more fully,.the same will be required hereafter to be reduced to narrative form in the printed case, in the absence of any special reason to the contrary.

4. It is not error to refuse a specific instruction, though correct in principle and applicable to the case, if it is substantially given in the general charge.

5 In an action for an injury to plaintiff’s person, caused by a collision between defendant’s vessel and that of plaintiff, an instruction that if plaintiff, by luffing, would *probably*have avoided the injury, he had no right of action — was properly refused; and, also, a further instruction that “ it was positively in evidence from experts, and no testimony to the contrary, that if the plaintiff had luffed it would have tended to avoid, and in all probability would have avoided, the collision, and his omitting to do so was negligence, which, would prevent a recovery.”

6. The question is not, whether plaintiff *might*have avoided the injury, but whether he exercised reasonable and proper care, and made reasonable and proper effort, under all the circumstances, to avoid it; and this is peculiarly a question of fact for the jury.

7. The evidence being such as would justify a finding that plaintiff’s injuries from the collision were permanent; that they unfitted him for the business to which he had been reared (and upon which he relied for the support of himself and family), or for any laborious employment; and that they woufd subject him to physical suffering during his life — this court does not find, in a verdict in his favor for $5,500, such evidence of partiality, passion or prejudice as will'authorize it to set such verdict aside as excessive.

*570APPEAL from fire Circuit Court for *Milwaukee*County.

The defendants appealed from a judgment in favor of the plaintiff. The case is stated in the opinion.

*Emmons é*Hamilton, for appellants,

argued that there was no negligence shown on defendants’ part; that if there was such negligence, it was not the proximate cause of plaintiff’s injury, but plaintiff’s own act was such proximate cause; and that plaintiff was at least guilty of contributory negligence ; and to these points they cited *The Oountess of Dunham,*9 Monthly Law Mag., cited in Pritchard’s Adm. Dig., 161, note 15 ; *The Eloides,*8 Hagg., 365; *Pearson v.*Duane, 4 Wallace, 605; *Ins. Co. v.*Tweed, 7 id., 52; *Milton v. Steamboat Co.,*37 N. Y., 210; *Miller v. Mariner's Church,*7 Greenl., 51; 1 Denio, 317, 606 ; 17 Pick, 284; *By an v. B. B.,*35 N. Y., 212; *Waite v. Gilbert,*10 Cush., 177; 13 Gray, 487; *Nolan v. Tug “ Union,"*per DRUMMOND, J., 2 Ch. Leg. News, 121; *Imhoff v. B. B.,*20 Wis., 344; Art. XX, Act of Congress of April 29, 1864. They also contended that the jury were misled by the refusal of the instructions asked by the defendants; that if a party asks a specific charge pertinent to the case, he is entitled to it; .and that his right is not satisfied by any language in the charge which is less than an exact equivalent to the instruction so asked.

*Mann & Cotzhausen,*for respondent,

as to the duty of a steam vessel,.in circumstances like those appearing in this action, cited *The Corsica,*9 Wallace, 630; *The*Alleghany, id., 522; *The Johnson,*id., 146; *The Carroll,*8 id., 302; and they argued upon the evidence that the questions of negligence were properly submitted to the jury.

Lyon, J.

On the morning of July 4th, 1868, the steam tug “G. W. Tifft,” then owned by defendants and commanded by .Captain Theodore Consaul, when running from the harbor at Milwaukee, through what is called the “straight cut,” towards Lake Michigan, collided with a small sail boat called the “Mary *571Jane,” which was commanded by tbe plaintiff. Tbe sail boat was sunk by tbe collision, and tbe plaintiff, wbo was on board of ber at tbe time, bas brought tbis action to recover damages for injuries to bis person and property wbicb be claims to bave sustained by sucb collision and tbe sinking of bis boat.

Tbe plaintiff bad a verdict in tbe circuit court for $5,500 damages; and from tbe judgment entered in pursuance thereof, tbe defendants bave appealed to tbis court.

Tbe testimony is very voluminous, tbe bill of exceptions containing over seven hundred folios; and instead of making and printing a case containing a brief abstract thereof, as required by tbe rules of tbis court, tbe appellants bave printed in the case tbe whole bill of exceptions. It is believed that all of tbe testimony necessary to be inserted in tbe printed case for tbe purposes of tbis appeal might bave been condensed to one-tenth tbe space wbicb tbe testimony now occupies therein. We find no fault with tbe counsel for tbe appellants, for we know that tbe practice of printing all of tbe testimony contained in tbe bill of exceptions is quite general; but we allude to tbe subject for tbe purpose of repeating what we bave bad occasion to say before during tbe present term, that hereafter tbe rule of tbis court requiring a brief abstract of tbe return of tbe clerk to tbe writ of error or tbe appeal to be printed, (wbicb return includes tbe bill of exceptions,) must be observed. In all jury cases where tbe testimony is conflicting upon any question of fact, it is entirely unnecessary to set out tbe testimony in full, but it is sufficient to say in tbe printed abstract that tbe testimony tends to prove or to disprove tbe fact, and to make a reference therein to tbe folios in tbe bill of exceptions where tbe testimony can be found.

By these remarks we do not wish it to be understood that a party is not entitled to bave all of tbe testimony given upon tbe trial inserted in tbe bill of exceptions. But where kll questions and answers are taken down by tbe reporter, tbe judge settling tbe bill may doubtless, in bis discretion, require the *572testimony to Re put in a narrative form. And in cases where, upon appeal, this court is required by law to review tbe finding of facts by tbe court below, and where it may be necessary to print tbe testimony more fully, this court will hereafter reqube that tbe same be reduced to a narrative form in tbe printed case, unless there be some special reason, in a particular case, why it should be printed in tbe other form.

Tbe testimony introduced on tbe trial tended to show that tbe tug came down tbe harbor from tbe north, and turned east-wardly into tbe “ straight cut; ” that one Crane, who was not a seaman nor employed on tbe tug, was at tbe wheel, and tbe captain was having bis boots blacked; that they did not, and could not, by reason of intervening objects, see tbe sail boat until tbe tug turned into tbe cut; that Crane first saw her, and told tbe captain; that tbe sail boat, when discovered by tbe tug, was beating up tbe cut, and was about two hundred feet from tbe tug, sailing southwest, or diagonally across tbe bow of tbe tug, and was near tbe north pier; that tbe captain of tbe tug attempted to pass tbe sail boat to tbe north, between it and tbe north pier, but in doing so was embarrassed by a sand bar which bad formed near that pier; that tbe tug collided with tbe sail boat, and sunk her, sixty feet or more south of that pier; that tbe tug was going at tbe rate of five or six miles an hour when she ran into tbe cut, and did not slacken her speed until just at tbe time of tbe collision; that tbe sail boat was heavily loaded with stone, was going at tbe rate of three or four miles per hour, bad started on tbe southwest tack before the plaintiff saw tbe tug, and did not change her course before tbe collision ; that tbe straight cut is about two hundred and sixty feet wide from north to south, and extends from the harbor to Lake Michigan, in nearly an easterly direction, about eleven hundred feet; that there was on tbe boat with the plaintiff a boy, who left tbe boat and went into tbe water when it appeared that tbe collision was inevitable, and who escaped without *injury;*that tbe plaintiff could swim, and, bad be left tbe boat at tbe time *573the boy left ber, would probably have escaped without injury that he remained on the boat expecting to get on board the tug when the collision should take place; that when the tug struck his boat, he did attempt to get on board of her, but failed in the attempt, went into the water, was drawn under the tug and between her bottom and one of the masts of his own vessel, and was thereby injured.

As to the extent of his injuries, the testimony tends to show that the plaintiff had two ribs broken, and one of his legs, in the lower part thereof, so badly bruised and wounded that pieces of bone subsequently worked out through the wound; that he was confined to his bed ten or twelve days after he was injured, and was under the care of a surgeon, necessarily, for four months; that he has never recovered from the effects of either of said injuries, but still suffers from pain in the injured side and leg; that he is unable to lie upon that side, and his wounded limb becomes sore and painful if he gets his feet wet; that he is twenty-eight years of age, and a sailor by trade, but has been unable to follow that business since he was injured, because of such injuries; and that such injuries will ’ probably be permanent in their effects, and probably will always incapacitate him from performing hard labor or enduring severe exposure.

The testimony further tends to show that his reasonable expenses for medical or surgical attendance were two hundred and twenty-five dollars, and that he lost in money and clothing forty dollars by the sinking of his boat.

No questions seem to be made upon the rulings of the court in admitting or rejecting testimony, or upon the charge of the judge to the jury. But the court refused to give the jury certain instructions asked on behalf of the defendants, to which refusal due exception was taken; and the only questions which we are called upon to consider are, 1. Did the circuit judge err in refusing to give such specific instructions ? and 2d. Are the damages awarded by the jury excessive ?

*574The circuit judge charged the jury, in substance, that the plaintiff could not recover unless he had proved to their satisfaction that he had not been guilty of any carelessness or negligence which contributed to the injury, and that nothing that could reasonably be required of him was left undone to avoid the injury; and if he had failed to thus satisfy them that he was free from negligence, he could not recover even though the carelessness of the agents of the defendants who were in charge of the tug, contributed to the injury.

Hé further instructed the jury that although the plaintiff was free from negligence, still he could not recover if they found that everything was done by those in charge of the tug that could be done under the circumstances to avoid the collision; that unless the negligence and carelessness of those in charge of the tug caused the injury, the defendants are not liable therefor.

On the rule of damages the judge instructed the jury as follows : “All the damage the plaintiff would be entitled to, if you find he is entitled to recover at all, would be the actual damage he has sustained. This you are to find from the proof; and they are to be the injuries which resulted immediately from the accident, not any doubtful ones. If there is a question of doubt as to the extent of it, whether it is permanent or not, he is not entitled to receive any damages for injuries which may possibly happen in the future. It must be the actual damages sustained in consequence of that injury ; and if the injuries in the future are very remote, and not clearly and distinctly proven before you, you are not to assess any damages for them whatever.”

After a careful examination of the charge of the court and of the instructions asked on behalf of the defendants, we are satisfied that there is nothing in the former of which the defendants, can justly .complain, and that every correct legal proposition contained in the latter, is included in the charge that was given to the jury. We have often held that it is not error to *575refuse a specific instruction, altbougb it may be correct in principle and applicable to tbe case, if the instruction is substantially given in the general charge. *Osen v.*Sherman, 27 Wis., 501.

The testimony tended to show, and perhaps did show, that had the plaintiff changed his helm, or, as the experts express it, had he *luffed,*in all probability the accident would have been avoided.

Two of the instructions based upon this testimony, demand special notice. They are as follows:

“If putting his helm to port, or luffing, would *probably*have avoided the personal injury claimed to have been sustained, he has no right of action.”

“ It is positively in evidence from experts, and no testimony to the contrary, that if the plaintiff had *luffed,*it would have tended to avoid, and in all probability would have avoided the collision. Omitting to do so was negligence, and will prevent a recovery.”

The court was here asked to hold asa proposition of law, that if the plaintiff did not do an act, which, had he done it, would probably have avoided, the injuries which he received, such omission was negligence, which defeats his action.

The real question in this case is not whether the plaintiff might have avoided the accident and injury, but whether he exercised reasonable and proper care and made reasonable and proper effort, under all of the circumstances, to avoid it. This is peculiarly a question of fact for the jury, because the solution of it depends upon the existence or non-existence of very many alleged facts and circumstances concerning which the testimony is conflicting, and which can only be determined by the jury. Before the court can say, as a proposition of law, that the failure to *luff*was of itself negligence, it must know to a certainty the relative position of the boats ; their speed and direction ; their distance from the north *pier;*the facility with which the tug could be stopped, or the direction of either ves*576sel changed; tbe time wbicb tbe plaintiff bad in wbicb to comprehend tbe situation and decide upon tbe best measures to be adopted for bis safety; tbe direction and force of tbe wind; tbe probability that be would be able to save bimself by clinging to tbe tug. These, and perhaps other conditions, are elements in settling this question of negligence, which must be determined before tbe court can say that tbe plaintiff was guilty of such contributory negligence as will necessarily defeat bis action. And, as already observed, in respect to many of these conditions, tbe testimony is conflicting, and they can only be determined by tbe jury. *Castello v. Landwehr, ante,*p. 522.

We think tbe court was correct in submitting to tbe jury these questions as to tbe negligence of tbe respective parties. There was sufficient testimony tending to show that tbe injury to tbe plaintiff was caused by tbe negligence of tbe persons in charge of tbe tug, to make this a proper question to be determined by tbe jury; and tbe evidence that tbe plaintiff was guilty of negligence wbicb contributed to tbe injury, was not sufficiently conclusive to justify tbe court in withdrawing from tbe jury tbe question as to whether there was such contributory negligence.

We find no error in tbe refusal of tbe court to give tbe instructions asked on behalf of tbe defendants.

2. Are tbe damages awarded by tbe jury excessive?

In *Goodno v. The City of Oshkosh (ante,*p. 300), we held that a verdict for five thousand dollars in that case was excessive. There tbe injury for wbicb tbe damages were given was a fractured ankle, and although it bad been a very painful and troublesome injury, tbe decision was placed upon tbe ground that tbe reasonable probabilities were that tbe limb, with tbe exception of some loss of symmetry, would probably be entirely restored in a few months to its original soundness and usefulness. And yet, in that case, a majority of tbe court was inclined to tbe opinion that a verdict for three thousand dollars should not be disturbed. It is said, in tbe opinion in that case, *577tbat *“*bad tbe evidence shown tbat tbe disability was serious at tbe time of tbe trial, and probably would be permanent, we do not say tbat we should have thought it our duty to disturb tbe verdict.” Tbe plaintiff in that action was a widow lady, having two young children dependent upon her for support, and she bad no pecuniary resources except her own labor.

In tbe present case, tbe testimony justified tbe jury in finding tbat tbe injuries received by tbe plaintiff by reason of tbe collision, were permanent; tbat they unfitted him for tbe business to which be bad been reared, and upon which be relied to support himself and family, or for any laborious employment; and tbat they would subject him to pain and suffering during bis life. Under these circumstances we cannot say tbat tbe jury awarded tbe plaintiff excessive damages. We cannot say tbat tbe plaintiff has not sustained and will not sustain actual pecuniary damages by reason of such injuries, to tbe amount awarded by tbe jury. And although it must be conceded that tbe jury dispensed damages with a liberal band, yet we fail to find in their verdict such evidences of partiality, passion, or improper bias or prejudice, as would authorize us to interfere and set tbe verdict aside as excessive. See *Murray v. Hudson River R. R. Co.,*47 Barb., 196; *Birchard v. Booth,*4 Wis., 67; *Potter v. C. & N. W. R. Co.,*22 id., 615; *Schmidt v. Mil. & St. P. R. Co.,*23 id., 186.

*By the Gourt.*— Tbe judgment of tbe circuit courtis affirmed.