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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                                         This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
June 25, 2002
A party may file with the Supreme Court a
                                                                                        Cornelia G. Clark                                               petition to review an adverse decision by the
                                                                                        Clerk of Court of Appeals                                       Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                                                        and RULE 809.62.
                                                                                                                                                        Cir. Ct. No.   98-CV-280
Appeal No.                                                                              01-2997
STATE OF WISCONSIN                                                                                                                                      IN COURT OF APPEALS
DISTRICT III
MYRON WIZA,
PLAINTIFF-APPELLANT,
V.
NORTHLAND INSURANCE CO., XYZ INSURANCE CO., AND
MARY L. HART,
DEFENDANTS-RESPONDENTS.
APPEAL  from a judgment and an order  of  the circuit court for
Chippewa County:   THOMAS J. SAZAMA, Judge.   Affirmed.
Before Cane, C.J., Hoover, P.J., and Peterson, J.
¶1                                                                                      CANE, C.J.    Myron Wiza appeals from a judgment entered on a
jury verdict that found him twenty percent contributorily negligent in a truck
accident in which he was injured.   The jury found the driver, Mary Hart, eighty
percent causally negligent in the accident.   On appeal, Wiza asserts three general
grounds for reversal.   First, he contends the trial court erred when it allowed Hart




No. 01-2997
to testify regarding her ability to control the truck after Wiza intervened in an
attempt to prevent the accident.   Second, Wiza argues the trial court erred when it
failed to find that the emergency doctrine applied as a matter of law and instructed
the jury regarding  Wiza’s negligence.    Finally,  Wiza contends these mistakes
infected the jury’s determination of damages, resulting in a perverse verdict.   Wiza
seeks a new trial or, in the alternative, a modification of the judgment removing
the  finding  of  his  contributory  negligence.    Because  the  trial  court  properly
allowed Hart’s testimony and correctly instructed the jury, and because the jury’s
verdict is not perverse, we affirm the judgment and order.
STATEMENT OF FACTS
¶2                                                                                         Hart received her commercial driver’s license in July of 1995 and
went to work for Wiza as a truck driver.   Wiza was an independent driver who
owned his own trucks, which he operated through Comdata, a trucking company.
Early in the morning hours of October 21, 1995, Wiza and Hart were driving from
Sturgeon Bay to Menomonie.   He and Hart had been “team driving” the vehicle
and Wiza was sleeping on the bunk behind the seats while Hart drove.    Hart
entered a cloverleaf turn at the intersection of Highways 29 and 124 in Chippewa
County at approximately sixty miles per hour, which was forty miles per hour over
the posted speed limit.   When she realized she had entered the curve too fast, she
began braking and yelled to Wiza, who got up and reached for the jake brake.   In
the process of reaching for the jake brake, Wiza braced himself on the steering
wheel.    Wiza’s and Hart’s efforts to stop the semi were unsuccessful and the
vehicle rolled over, coming to a stop at the bottom of the curve.
¶3                                                                                         At trial, Hart testified over Wiza’s objection that she believed she
could have kept the vehicle upright if Wiza had not grabbed the steering wheel
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No. 01-2997
when he reached for the jake brake.   In terms of Wiza’s injuries stemming from
the accident, Wiza said he returned to work two or three weeks after the accident,
but was unable to perform many of the required duties as well as he did before,
such as sitting for extended periods of time.   In addition, Wiza testified he had
experienced health problems prior to the accident with symptoms similar to the
ones he claimed he suffered from the accident, including back, hip, and leg pain.
Wiza received sporadic treatment for his problems from April  1996 to January
2001, consisting mostly of chiropractic treatment and pain injections.    Wiza’s
treating physician testified Wiza would require future surgery, although Wiza said
he would not have surgery.   Wiza also testified he had owned his own trucking
company since  1997  and no longer leased his trucks through Comdata.    The
company had turned profits in 1999 and 2000, something Wiza had never done
during his prior work in the trucking industry.    Wiza said his health problems
limited his work to mostly managerial duties.
¶4                                                                                     The trial court found Hart negligent as a matter of law.   However,
the court denied Wiza’s request to conclude he was faced with an emergency as a
matter of law and therefore, not negligent.   Instead it submitted the issue to the
jury.   The court also instructed the jury regarding Wiza’s negligence.   The jury
found  both  Hart and  Wiza  causally negligent and  apportioned the  negligence
eighty  percent  to  Hart  and  twenty  percent  to  Wiza.  The  jury  awarded  Wiza
$20,000 for past pain and suffering, $4,000 for past lost earning capacity, $1,287
for past medical expenses, and no future damages.   Wiza brought a motion for a
new trial, which the court denied.   He now appeals the judgment and the order
denying his post-trial motion.
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No. 01-2997
DISCUSSION
I.   Hart’s Testimony
¶5                                                                                         Wiza first argues the trial court improperly allowed Hart to testify
that she could have prevented the tractor and trailer from tipping over had Wiza
not grabbed the steering wheel.   We review a circuit court's decision to admit or
exclude evidence under an erroneous exercise of discretion standard.   Morden v.
Continental AG, 2000 WI 51, ¶81, 235 Wis. 2d 325, 611 N.W.2d 659.   We will
not upset a circuit court's decision to admit or exclude evidence if the decision has
“‘a reasonable basis’ and was made ‘in accordance with accepted legal standards
and in accordance with the facts of record.’”   Lievrouw v. Roth, 157 Wis. 2d 332,
348, 459 N.W.2d 850 (Ct. App. 1990).
¶6                                                                                         Before  addressing  the  merits  of  Wiza’s  argument,  we  must  first
address Hart’s claim that Wiza failed to properly preserve his objection at trial.   In
order for an evidentiary ruling to be raised on appeal, the appealing party must
have  made  a  timely  objection  and  state  the  specific  grounds  if  they  are  not
apparent from the context.   WIS. STAT. § 901.03(1)(a).1   Here, Hart argues Wiza
failed to preserve his objection when Hart’s counsel initially asked her if she
thought she could have prevented the roll-over.   Instead, Hart claims, Wiza only
objected later, when a similar question was asked.
¶7                                                                                         We determine Wiza properly preserved his objection.   Hart suggests
Wiza is precluded from raising this issue on appeal because he failed to object to
1 All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise
noted.
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No. 01-2997
an earlier question specifically asking whether Wiza’s grabbing the steering wheel
affected Hart’s ability to control the vehicle. We disagree.    Wiza objected to
Hart’s  testimony  that  she  could  have  kept  the  vehicle  upright  had  Wiza  not
grabbed  the  steering  wheel.  Wiza’s  counsel  objected  immediately  after  this
question was asked, arguing the answer would be speculative and self-serving.
Wiza properly preserved his objection under WIS. STAT. § 901.03(1)(a).2
2
The relevant portion of Hart’s direct examination by her counsel is as follows:
Q:  And did him placing his hand on the steering wheel affect
your ability to control—
A:  Yes, it did.
Q:   — the vehicle?
A:  Yes, it did.
Q:  In your mind, had he not grabbed the—well, first of all, were
you requesting that he somehow assist or grab the wheel or grab
the trailer brake?
A:  No, I did not.
Q:  That was something you as the driver were going to do and
were in the process of doing?
A:  Yes, I was.
Q:  Had he not, Miss Hart, grabbed the wheel, do you believe
you could have either controlled the vehicle or at least, at a
minimum, kept it from turning over?
A:  I believe—
MR. RYBERG: Object as self-serving and speculative, Your
Honor.
THE COURT:  Overruled.  She may answer.
A:  I believe I could have at least prevented it from tipping over.
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No. 01-2997
¶8                                                                                         Wiza argues Hart’s testimony was an incredible proposition, self-
serving and speculative, but offers no additional support for his claim the trial
court erred by admitting it.   WISCONSIN STAT. §                                           907.01 permits lay witnesses to
give opinion testimony if the opinion is “rationally based on the perception of the
witness and helpful to a clear understanding of the witness’s testimony or the
determination of a fact in issue.”   Hart was driving at the time of the accident.   She
had been trained as a truck driver.   It was within her perception at the time of the
accident whether she thought she could have prevented the truck from rolling.   In
addition, Hart’s testimony ultimately addressed whether Wiza was contributorily
negligent, a fact in issue.   We cannot say the trial court erroneously exercised its
discretion by admitting Hart’s testimony.   Wiza’s objections to Hart’s testimony
being self-serving and incredible are concerned more with weight and credibility
rather than admissibility.    See Hennig v. Ahearn,  230 Wis.  2d  149,  180,  601
N.W.2d 14 (Ct. App. 1999).   Weight and credibility are the exclusive province of
the jury.   See State v. Toy, 125 Wis.  2d 216,  222,  371 N.W.2d 386 (Ct. App.
1985).   Whether Hart’s testimony truly reflected her belief she could have stopped
the truck or whether it was accurate is not a decision the trial court makes, nor one
that we review.
II.   Jury Instructions
¶9                                                                                         Wiza next argues the trial court erred by submitting to the jury the
issue  of  whether  an  emergency  existed  along  with  instructions  on  Wiza’s
negligence.   Wiza contends he was faced with an emergency as a matter of law,
which would have precluded the court from instructing the jury regarding his
negligence.   Hart responds the emergency doctrine did not apply as a matter of law
because  there  was  a  factual  dispute  regarding  Wiza’s  role  in  creating  the
emergency.   In addition, Hart suggests the emergency doctrine could not apply in
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No. 01-2997
this situation because it only applies to drivers, not passengers.   Hart also argues
the court properly instructed the jury on Wiza’s negligence.
¶10    A trial court has broad discretion in instructing a jury.   Garceau v.
Bunnel,                                                                                    148  Wis.                                                         2d   146,   151,   434  N.W.2d  794  (Ct.  App.   1988).   The
appropriateness  of  a  particular  instruction,  however,  turns  on  a  case-by-case
review of the evidence.   Id.   A court has “a duty to instruct a jury and submit a
verdict with due regard to the facts of the case.”   Vogel v. Grant-Lafayette Elec.
Coop., 201 Wis. 2d 416, 429, 548 N.W.2d 829 (1996).   It is error for a court to
give an instruction that has no support in the evidence.   Lutz v. Shelby Mut. Ins.
Co., 70 Wis. 2d 743, 750, 235 N.W.2d 426 (1975).   We will not order a new trial,
however, unless the error is prejudicial.   Id. at 750-51.   Prejudice will not be found
unless we can conclude the instruction probably misled the jury.   Kuhlman, Inc. v
G. Heileman Brew. Co.,  83 Wis.  2d  749,  756,  266 N.W.2d  382  (1978).    We
review the instructions as a whole to determine if the jury was properly informed
of the law.   Id.
A.  The emergency doctrine
¶11    The emergency doctrine relieves people of liability for their action
or inaction when faced with an emergency that their conduct did not create.   Hoeft
v. Friedel, 70 Wis. 2d 1022, 1030, 235 N.W.2d 918 (1975).   The doctrine has
three requirements:                                                                        (1) the party seeking the benefits of the doctrine must be free
from negligence which contributed to the creation of the emergency; (2) the time
element in which action is required must be short enough to preclude deliberate
and intelligent choice of action; and (3) the element of negligence being inquired
into must concern management and control.   Id.; see also WIS JI—CIVIL                     1105A.
The trial court may conclude the emergency doctrine applies as a matter of law if
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No. 01-2997
the  uncontroverted  evidence  establishes  these  three  elements.                   Garceau,
148 Wis. 2d at  153.    Ordinarily, however, the application of the doctrine is a
question for the jury.   Hoeft, 70 Wis. 2d at 1030.
¶12    We first address Hart’s contention that the emergency doctrine does
not apply in this case because Wiza was not driving the vehicle.   In support, Hart
points to Garceau and the relevant jury instruction, which both use the word
“driver” when discussing the relevant actor.   Garceau, 148 Wis. 2d at 152; WIS
JI—CIVIL 1105A.   In response, Wiza cites Lutz, which uses “person” to describe
the relevant actor.   Lutz, 70 Wis. 2d at 753-54; see also Totsky v. Riteway Bus
Serv., Inc., 2000 WI 29, ¶23, 233 Wis. 2d 371, 607 N.W.2d 637.   The court gave a
modified version of the standard instruction that allowed the jury to consider the
doctrine  as  it  applied  to  Wiza.3    We  conclude  the  court  properly           gave       the
emergency instruction.
3 The court’s instruction was as follows:
1105A  MANAGEMENT AND CONTROL—EMERGENCY
When considering negligence as to management and control,
bear in mind that a passenger may suddenly be confronted by an
emergency not brought about or contributed to by his or her own
negligence.
If that happens and the passenger is compelled to act instantly
to avoid collision, the passenger is not negligent if he or she
makes  such  a  choice  of  action  or  inaction  as  an  ordinarily
prudent person might make if placed in the same position.
This is so even if it later appears that her or his choice was not
the best or safest course.   This rule does not apply to any person
whose negligence, wholly or in part, created the emergency.   A
person is not entitled to the benefit of this emergency rule unless
he or she is without fault in the creation of the emergency. This
emergency rule is to be considered by you only with respect to
your consideration of negligence as to management and control.
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No. 01-2997
¶13    We reject Hart’s contention the emergency doctrine applies only to
drivers.  The  emergency  doctrine  can  apply  to  anyone  facing  an  emergency,
provided the person can prove the necessary elements.   “While the emergency rule
in Wisconsin has had its greatest development in the area of automobile accident
cases,  its  application  is  by  no  means  limited  to  negligence  on  the  road.”
McCrossen v. Nekoosa Edwards Paper Co., 59 Wis. 2d 245, 259, 208 N.W.2d
148 (1973).   In McCrossen, the supreme court determined the trial court erred by
not giving an emergency instruction in a lawsuit arising out of an accident at a
paper mill.   Id. at 259-60.   The court noted the earliest case applying the doctrine
arose out of a railroad yard accident.   Id. at  259.   The court said whether the
person seeking application of the doctrine is entitled to it is a question of whether
his or her negligence contributed to creating the emergency.   In such situation,
where there is a jury question as to the cause of the emergency and the time
element is so short as to make the doctrine otherwise applicable, a party is entitled
to the emergency instruction.   Id.
¶14    In this case, Wiza argued he was faced with an emergency that he
had no part in creating, the time he had to react was very short, and his actions in
activating the jake brake and grabbing the steering wheel were related to the
vehicle’s management and control.   Wiza introduced evidence in support of these
arguments and claimed he was entitled to an emergency instruction.
¶15    Wiza  suggests  this  evidence  was  sufficient for  the  trial  court  to
conclude there was an emergency as a matter of law.   We disagree.     Determining
whether an emergency existed is normally a jury question. The court may only
conclude  there  was  an  emergency as  a  matter  of  law  if  there  is  no  credible
evidence to support a finding that any one of the doctrine’s three elements was not
met.   Hoeft, 70 Wis. 2d at 1030.   In this case, there is a dispute about Wiza’s
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No. 01-2997
negligence contributing to the accident.   Hart contends Wiza contributed to the
emergency situation by sleeping while the inexperienced Hart was driving at night
on an unfamiliar road and also by grabbing the steering wheel when he reached for
the jake brake.   Wiza argues his sleeping was a normal part of “team driving” and
that the emergency already existed when he awoke, so he was not negligent in
contributing to the emergency. “The determination of whether a party’s negligence
was a factor in producing the emergency  … is in many instances, also a jury
issue.”   Geis v. Hirth, 32 Wis. 2d 580, 587, 146 N.W.2d 459 (1966).   The trial
court  properly  allowed  the  jury  to  resolve  the  factual  disputes  over  Wiza’s
negligence.
B.   Contributory negligence instructions
¶16    Wiza next argues the court improperly instructed the jury on his
negligence.   In part, he claims the instructions were improper because the court
should have concluded the emergency doctrine applied as a matter of law, which
would  have  precluded  any  inquiry  into  his  negligence.     We  have  already
concluded the emergency issue was properly submitted to the jury.    Wiza also
contends the instructions given had no basis in the facts and resulted in prejudice.
¶17    Specifically, Wiza takes issue with the trial court giving WIS JI—
CIVIL 1047  Contributory  Negligence  of  Guest:  Riding  with  Host;                    1047.1
Negligence  of  Guest:  Active:  Management  and  Control;  and                          1075  Lookout:
Guest.4   WISCONSIN JI—CIVIL 1047 requires passengers to exercise ordinary care
4 The court gave the following instructions:
1047 CONTRIBUTORY NEGLIGENCE OF GUEST: RIDING
WITH HOST
(continued)
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No. 01-2997
A passenger in a motor vehicle has no duty with reference to
the manner in which the vehicle is momentarily managed. A
passenger  may  assume  that  the  driver  understands  and
appreciates the control he or she has over the vehicle and that the
driver will not operate it in a negligent manner.
However,  if  the  driver,  during  operation  of  the  vehicle,
subjects the passenger to an unreasonable risk of injury and the
passenger knows or in the exercise of ordinary care ought to
know that the passenger is being exposed to such danger, it then
becomes the passenger's duty to use ordinary care for his or her
own protection by taking such action open to him or her as a
person of ordinary intelligence and prudence would take under
the same or similar circumstances.
1047.1  NEGLIGENCE                                                     OF   GUEST:   ACTIVE:
MANAGEMENT AND CONTROL
The management and control of a motor vehicle is the duty
and responsibility of the driver alone.   If a guest passenger, by
physical action, interferes with the management and control of
the driver, or if the—or if a guest passenger, by any other action,
distracts the driver from the driver's duties of management and
control,  then  the  guest  passenger  is  negligent  as  that  word
previously has been defined for you.
1075  LOOKOUT:  GUEST
A guest passenger in a motor vehicle has a duty to exercise
ordinary care for his or her own safety. This duty requires a
guest to exercise ordinary care in maintaining a proper lookout to
warn the driver of any danger of which the guest has reason to
believe the driver may not be aware.
A guest passenger, however, is not bound to maintain the
same degree of diligence in keeping a lookout as is required of
the driver of the vehicle because a passenger does not have the
responsibility of operating and controlling the vehicle.
However,  the  fact  that  the  passenger  is  not  in  charge  of
operating the vehicle does not relieve the passenger from all duty
to use care for his or her own safety.
The passenger's duty with respect to lookout is to exercise that
care  and  caution  which  a  person—a  person  of  ordinary
intelligence, care and prudence would use while riding in the
same passenger seat of the vehicle as the plaintiff and under the
same or similar circumstances as exist in this case.
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No. 01-2997
for their own safety if the driver subjects the passenger to an unreasonable risk of
injury.   WISCONSIN JI—CIVIL 1047.1 requires passengers not to interfere with the
driver’s  management  and  control.     Wiza  argues  these  two  instructions  are
inconsistent because one requires action by the passenger and the other forbids it.
We do not agree.   Instruction 1047 requires passengers to take ordinary care for
their own safety.   What is considered ordinary care, and whether Wiza exercised it
in this case by grabbing for the jake brake and leaning on the steering wheel, are
fact questions for the jury.   In addition, instruction 1047.1 must be viewed together
with  the  emergency instruction.  While  instruction  1047.1  says  passengers  are
negligent  when  they  interfere  with  the  driver’s  management  and  control,  the
emergency  instruction  removes  that  negligence  if  an  emergency  truly  exists.
Whether the emergency existed when Wiza woke up or whether it developed after
he tried to help Hart was an issue properly left to the jury and one on which the
trial court gave the proper instructions.
¶18    Wiza also claims the trial court should not have given WIS JI—CIVIL
1075 Guest: Lookout.   He argues he had no lookout duty because he was in the
back of the truck sleeping and the instruction’s duty would only apply to him if he
had been riding in the truck’s passenger seat.   He points to the language of the
instruction, which says “the passenger’s duty with respect to lookout is to exercise
that care and caution which a person of ordinary intelligence, care and prudence
would use while riding in the same passenger seat of the vehicle as the plaintiff
and under the same or similar circumstances as exist in this case.”   WIS JI—CIVIL
1075.   Wiza contends because he was not in the truck’s passenger seat, he had no
lookout duty.
¶19    The language at issue instructs the jury that the duty of lookout for a
passenger is what a reasonable person sitting in the same seat as the plaintiff
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No. 01-2997
would have under the circumstances.   In this case, Wiza’s lookout duty would be
that of a reasonable person riding in the truck’s bunk.   The lookout duty does not
end  when  a  passenger  sits  in  the  back  seat,  although  this  may  reduce  the
passenger’s lookout obligation.   See Lampertius v. Chmielewski, 6 Wis. 2d 555,
559,  95  N.W.2d  435  (1959).    The  lookout  duty can  also  extend  to  sleeping
passengers,  who,  if  they  had  been  awake  and  seen  the  obstacle,  would  have
anticipated that the driver would not properly avoid the obstacle until too late to
prevent the collision by action on the passenger's part.   Id. at 559-60.   Here, the
jury had to determine whether a reasonable passenger in Wiza’s situation would
have gone to sleep in the back of the truck.   Wiza and Hart testified that Hart was
a  relatively  inexperienced  truck  driver  and  she  was  unfamiliar  with  the
intersection,  whereas  Wiza  had  been  driving  for  many  years  and  had  driven
through the accident area in the past.   In addition, the accident occurred in the
middle of the night.   This evidence provided a sufficient basis for the trial court to
instruct the jury on Wiza’s lookout duty.
III.   Perverse verdict
¶20    Finally,  Wiza  argues  the  trial  court’s  errors  in  admitting  Hart’s
testimony and in instructing the jury resulted in a perverse verdict.   Because we
have determined the trial court did not err in these actions, however, we cannot
conclude they resulted in a perverse verdict.   See Spiegel v. Silver Lake Beach
Enter’s.,  274 Wis.  439,  451,  80 N.W.2d  401  (1957).    Wiza also contends the
damages awarded by the jury point to the verdict’s perversity.   We review a jury’s
finding under the  “any credible evidence” standard.    Foseid v. State Bank of
Cross Plains, 197 Wis. 2d 772, 782, 541 N.W.2d 203 (Ct. App. 1995).   We will
uphold the jury’s determination if there is any credible evidence to sustain the
verdict, and we will not look for evidence to support a verdict the jury did not
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No. 01-2997
reach.   Id.   A jury’s verdict is perverse if the jury clearly refused to follow the
direction or instruction of the trial court on a point of law or the verdict reflects
highly emotional, inflammatory, or immaterial considerations.   Kinship Inspect.
Serv., Inc. v. Newcomer, 231 Wis. 2d 559, 570-71, 605 N.W.2d 579 (Ct. App.
1999).
¶21    Wiza  claims  the  jury’s  awards  of  only  sixteen  percent  of  his
requested medical expenses, $20,000 for past pain and suffering and nothing for
future damages are inconsistent and inadequate.   He points to Fouse v. Persons,
80 Wis. 2d 390, 259 N.W.2d 92 (1977), in support of his claim.   In Fouse, the
supreme court upheld the trial court’s granting of a new trial after the jury came
back with what it considered a perverse verdict.    Id. at  395.    The Fouse jury
awarded $1,750 for medical expenses, $1,250 for past lost earnings, $275 for past
and future pain and suffering, and $7,725 for future lost earnings.   Id. at 394.   The
supreme court said the trial court’s finding of perversity was proper because the
jury heard uncontested evidence that the plaintiff’s reasonable medical expenses
were $5,400 and he had been out of work for twenty-one months, making the lost
wages award of  $1,250 inadequate.   Id. at 397-98.   Further, the supreme court
agreed with the trial court that the award for pain and suffering was inadequate
and inconsistent with the award for future lost earnings.   Id. at 399.
¶22    Here, in contrast to Fouse,   there is credible evidence to support the
challenged  damage  awards.    First,  Hart specifically contested  Wiza’s  medical
expenses, suggesting the injuries he suffered in the accident would have been
resolved in six to eight weeks and most of the approximately $9,000 he requested
was for treatment for pre-existing injuries.   Further, Wiza’s testimony he would
not be having surgery for his injuries provided a basis for the jury not to award
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No. 01-2997
future medical expenses, especially if the jury believed Wiza’s problems were due
to his pre-existing injuries.
¶23    Wiza also suggests the $20,000 past pain and suffering award makes
no sense when compared with the other damages and does not really reflect his
true pain and suffering.   We cannot agree. We again note the testimony regarding
Wiza’s pre-existing back problems.   The jury could have reasonably concluded
most of his past pain and suffering, as well as any in the future, would be due to
these problems, rather than those suffered in the accident.    In addition, Wiza
missed  approximately  three  weeks  of  work  after  the  accident.    There  is  no
evidence  in  the  record  to  suggest  the                                             $4,000  for  lost  earning  capacity  was
inadequate.   Furthermore, Wiza’s testimony he is making more money in his new
business is a sufficient basis for the jury not to award any damage for loss of
future earning capacity.   We cannot say the jury’s verdict was perverse or that a
new trial, either on all issues or solely on damages, is required.
By the Court.—Judgment and order affirmed.
Not recommended for publication in the official reports.
15

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