Sharp v. Milwaukee & Suburban Transp. Corp

In Sharp v. Milwaukee & Suburban Transp. Corp., 15 Wis. 2d 268, 112 N.W.2d 597 (1961), the plaintiff sought to recover for injury to her elbow when one of the defendant's bus operators negligently closed the door on her right arm as she was boarding the bus. See id. at 268. In the first appeal, the supreme court reversed the jury's original verdict and a new trial was granted on the issue of damages only. See id. at 269 n.1. After the new trial, the trial court concluded that the defendant had introduced evidence beyond the scope of the appellate mandate and granted yet another new trial. See id. at 269. The defendant had introduced evidence that the bus door had impact only with the plaintiff's forearm and not her elbow and expert testimony that the plaintiff's employment was a logical cause of the injury. See id. at 270. In determining the scope of the appellate mandate, the supreme court reviewed the issues that had been raised and addressed in the first appeal. It noted that an issue bearing on causation had not been addressed because it related to damages. See id. at 271. To suggest that a trial on damages also includes causation, Vulcan seizes upon the following statement in Sharp: "Because we said that these points related to damages, the new trial must include whatever issue could be made as to whether the blow described by plaintiff caused the tennis elbow." 15 Wis. 2d at 271-72. The Court said that "If we were to adopt the defendant's argument and mechanistically apply the legal principles upon which he relies, we would thwart the trial court's sentencing structure," and that absent an illegal sentence, we should not do so. Sentences are to be individualized to meet the facts of the particular case and the characteristics of the individual defendant. Defendant's approach does not serve this end. Instead, the resulting sentences would be artificial, as if imposed in a vacuum. Undoubtedly the better practice would have been for the trial court to expressly state that the challenged sentence was a consecutive sentence. But that failing should not undo what nonetheless is clearly conveyed by the words and the procedure which the court otherwise did use. (208 Wis. 2d at 334-335.)