Opinion
Nos. 33, 34.
Argued November 24, 1969. —
Decided February 3, 1970.
APPEALS from two judgments of the circuit court for Kenosha county: M. EUGENE BAKER, Circuit Judge. Reversed in part, affirmed in part, and remanded with directions.
For the appellant Phoenix Insurance Company of Connecticut (Case No. 33) there was a brief by Wolfe, O'Leary, Kenney Wolfe of Milwaukee, and oral argument by Z. F. O'Leary.
For the appellants Mark and Carl Pelz (Case No. 34) there were briefs by Brown, Black Riegelman of Racine, and oral argument by Dexter D. Black and Harley Brown.
For the respondent Wisconsin Southern Gas Company (Case Nos. 33 and 34) there was a brief by Aberg, Bell, Blake Metzner of Madison, and oral argument by Carroll E. Metzner.
For the respondents (Case No. 34) there was a brief by Heide, Sheldon, Hartley, Thom Wilk and William A. Sheldon, all of Kenosha, attorneys for Frederick P. and Georgia R. Worack, and of counsel for the Phoenix Insurance Company of Connecticut, and oral argument by William A. Sheldon.
This case involves the appeal of judgments entered December 23, 1968, in two actions consolidated for trial, both arising out of a gas explosion which occurred November 14, 1965, at the Lakeview Motel in Twin Lakes, Wisconsin. One action is for property damage by plaintiffs Mr. and Mrs. Worack, owners of the motel, and their fire insurer, Phoenix Insurance Company of Connecticut. The insurer's action is based on a subrogation claim. The defendant in that action, Wisconsin Southern Gas Company, was the supplier of natural gas for the motel heating units.
The other is an action brought under the safe-place statute (sec. 101.06) and in ordinary negligence by Mark Pelz, a guest of the motel, for personal injuries suffered in the explosion and fire, and for loss of earnings. Mark is joined by his father as a plaintiff on a claim for medical expenses. Defendants in that action are the Woracks, owners of the motel, and Wisconsin Southern Gas Company (hereinafter gas company).
The Lakeview Motel, Twin Lakes, Wisconsin, was owned and operated by Mr. and Mrs. Frederick Worack. Their residence was immediately adjacent to the nine-unit motel and structurally attached thereto. On the evening of November 13, 1965, they rented a room, unit 7, to the plaintiff Mark Pelz, who was at the time nineteen years of age. After attending a wedding reception, Mr. Pelz returned to the motel about 1:45 a.m., November 14, 1965. The room was warm and he noticed no problem with respect to the heat or gas heater. Each unit of the motel was provided with an individual gas heater with its own pilot light. The heaters operated on natural gas provided by the defendant gas company.
At approximately 8 a.m., November 14, 1965, defendant Mrs. Georgia Worack was awakened by a strange hissing noise. She woke up her husband and they discovered gas escaping from the kitchen stove. Mr. Worack turned on the stove and flames immediately began to burn in the air around the stove, shooting as high as two feet above the burners. He beat the flames out with a towel and shut off the supply of gas to the stove with a wrench.
While Mr. Worack was shutting off the stove, Mrs. Worack opened the windows upstairs to air out the house. She testified that she did not smell gas either when she discovered the leak at the stove or when she went upstairs to air out the house.
While Mrs. Worack was dressing the office doorbell rang and the man staying in unit 8 told her it was cold in his room. She then picked up some matches and accompanied him to unit 8. As they walked along the porch adjacent to the motel they met a man from unit 1 who complained there was no heat in his room, that he had heard a hissing noise about 4 a.m., and when he tried to light his heater flames were dancing around the valve. Mrs. Worack then turned off the gas supply in unit 1 and continued on to unit 8, which path took her past all the other units of the motel. When leaving unit 8 Mrs. Worack was met by the guest in unit 5, who also complained that his room was cold.
Realizing that something was wrong with the gas system in the motel, Mrs. Worack went to her residence to inform her husband that she was going across the street to contact Walter Hegner, an employee of the gas company. Without informing any of the other tenants of the gas problem she went across the street to Mr. Hegner's residence in an effort to seek assistance in resolving the problem with the leaking gas. While his wife was on her way to obtain help from Mr. Hegner, Frederick Worack did not warn the other tenants of the gas problem. Before Mr. Hegner could respond to the knock at the door by Mrs. Worack the explosion occurred at 8:30 a. m.
The plaintiff, Mark Pelz, testified that he awoke about 8:15 a.m., November 14, 1965, and found his room very cold. He stated that he heard a hissing noise and thought it was the shower running in the next room. He sat on the side of his bed and lit a match intending to relight the space heater. The explosion knocked him to the floor, blew the windows and door out, and forced the front wall of the room out from its base. Pelz ran out of the room and toward the road, then turned around and ran into unit 5 where he jumped into the bed. Mrs. Worack observed the explosion from the porch of the Hegner house and stated that she saw Mark Pelz running along the porch of the motel screaming and on fire.
On direct examination Pelz described his immediate condition as follows:
" Q. How were you dressed?
" A. Just in my jockey shorts and a T-shirt.
" Q. When you got to No. 5 you say you jumped into bed?
" A. Yes, I jumped in that man's bed.
" Q. And what did that man do, if anything?
" A. He tried to help me. We had to get out of there because the whole place was going to blow up. I couldn't move, I had a hard time even moving, he was helping me.
" Q. He helped you down there?
" A. He helped me outside and then down the walk toward the Worack home. He sat me down on the cement blocks there or the steps.
" Q. While you were sitting there, did you look at any part of your body?
" A. My hands were wrapped around in front of me, and my feet I couldn't see any of my nails or anything. It was just, skin was just bubbled all over, bubbled with this water or whatever it was coming out.
" Q. Apart from your hands and arms that you have described, did you notice anything with respect to your feet?
" A. They were the same way, just boiled.
" Q. And what was the temperature then?
" A. It was cold out, it was a sunny day, but real cold.
" Q. What was the effect upon you sitting there?
" A. I was freezing.
" Q. What was the effect of the condition you saw on your feet?
" A. I had a hard time walking because everything I touched felt like I was walking on glass or something, just stung every time I took a step, it was just a stinging right through my feet. They tried to help me, but as soon as they put their hands on my back or my arm it hurt even more.
" Q. Did you notice anything with respect to your lip, your lips?
" A. Not at that time, no.
" Q. Did you feel anything with respect to them?
" A. I just, my voice, I could barely talk.
" Q. Could you speak up, Mark?
" A. I had a real hoarse throat. I couldn't talk very well, but my lips I didn't know anything was wrong with them.
" Q. When you were on the stretcher in the squad car, what did they attempt to do to you then?
" A. Well, they put me in the Rescue Squad first. I was on their stretcher, then they tried to put these buckles over you to hold you in the stretcher. I couldn't bend my legs down because it hurt too much when I straightened my legs out. They tried to pull them across, and it just hurt too much."
Pelz was then transported to St. Catherine's Hospital in Kenosha where he continued to remain conscious until given pain medication in the emergency room. He was placed on a Striker Frame bed in the intensive care unit, which is a device built to facilitate frequent turning of patients without the necessity of attendants handling them. He stated that every time he was turned the skin would stick to the sheets and break open the blisters. Within two or three days after the fire the plaintiff lost his voice and was unable to use the hospital call button for two or three weeks because of the bandages on his hands.
Mrs. Pelz, Mark's mother, testified to his condition while hospitalized as follows:
"Q. How would you describe his condition, if any, the following day for appearance?
" A. The days — as one day led to another he got to look worse and worse because these burns that were on his face got redder and redder and finally black. We couldn't see his arms, of course, or his forearms or hands, but the rest of it was raw meat, looked like, and his eyes closed up with mucus and whatever that is, and his mouth he could barely open, and he looked like — awful.
" Q. Now, was there any change in Mark's condition other than this appearance that you have described during his progress in the hospital?
" A. Well, not for the first week or so, and then for a period of three or four days he was completely delirious or he didn't know what was going on.
" Q. Did you find him in this condition when you visited him?
" A. Yes, one afternoon I came in and he was lying there. He said, don't step on it, and there was nothing there, and he gave me stories of all sorts of shootings, and he imagined he was away from the hospital. He pleaded to be taken back to the hospital, and he kept saying there's a train, can't you get me off the train, and it was just ramblings. You couldn't make head or tail out of it."
There was considerable testimony respecting personal injuries in addition to that just related, including color photographs and slides of the plaintiff taken while hospitalized.
There also was evidence educed from both the plaintiff, Mark Pelz, and a consulting plastic surgeon, Dr. Christopher Dix, regarding permanent injuries. The plaintiff displayed considerable scarring with sensitivity to extreme heat, cold and sunlight. Dr. Dix stated that plastic surgery would be helpful only to relieve skin tension and itching in the biceps area. He indicated that many of the lubricating glands of the skin had been destroyed and further that Mark Pelz had sustained first, second and third-degree burns. Dr. Walid Burhani, the first physician to treat the plaintiff, stated that 50 to 60 percent of the body had been affected by burns.
As to the explosion, it is conceded by all parties that the gas leakage was caused by the malfunctioning of the gas pressure regulator. The regulator was a Reynolds Series 8200 regulator, installed and maintained next to the meter by the defendant gas company. The function of the regulator was to reduce the gas pressure coming from the main line at 13 pounds of pressure per square inch to one-quarter pound per square inch, or seven inches of water column, on the line leading to the Woracks' residence and motel so that the various appliances would work properly.
There is no dispute that the malfunction was caused by water freezing in the upper chamber of the regulator. As a result of this freezing, the regulator was inoperative in reducing the pressure, and the gas flowed into the motel and Worack residence lines at full pressure. This flow caused the pilot lights and heaters to be blown out and allowed the gas to escape into the rooms, accounting for the hissing noise heard by several people.
This regulator, according to the manufacturer's bulletin, was designed so that it could be installed in any one of four different positions. This particular regulator was installed in an upright position, with the air vent pointing upward and the atmospheric chamber on the top side of the regulator.
The manufacturer's bulletin provides:
(1) Page 2: "Upper diaphragm case designed to allow interchangeable vent position. Can be assembled for moisture drainage."
(2) Page 3: "With the spring top in an inverted position, the problem of moisture is solved as water will automatically drain out of the atmospheric chamber."
(3) Page 3: "For ease in ordering the Reynolds 8200 Series Regulators, here are the four standard positions available. Vent assembly position also shown. Note: As an example for specifications when ordering, Position 3 shows valve body installed for up flow, with diaphragm case inverted for outdoor weather protection."
The regulator was installed in the gas line outdoors, at the Lakeview Motel, next to the meter, with the vent and valve-adjusting mechanism in an upright position.
Immediately after the explosion, Walter Hegner, a gas company employee, summoned another employee of the company to the site and shut off the gas supply at the meter. Within a few minutes the second employee, Kenneth Kube, arrived and removed the regulator from the line. Neither Kube nor Hegner noticed anything missing from the regulator. Mr. Hegner stated that he observed ice built up two to three inches above the opening for the adjustment screw (hereinafter referred to as point 4C). Mr. Kube could not recall any mound of ice. He indicated that the ice was not built up three inches above this area, but only that the regulator was covered with a film of ice. Kube further testified that water was running down on the regulator from the firemen's hoses when he removed it from the line.
After the regulator was removed, it was placed on the ground near the building with the point marked 4C pointed skyward. Point 4C was described as a threaded opening over the adjusting screw at the atmospheric chamber of the regulator. This cavity is approximately one-half inch in diameter and hexagonal in shape. Normally it is covered by a threaded cap sealed with a wire which runs through the cap and attaches to the outer shell of the regulator. The regulator remained on the ground near the motel, unattended, for approximately one to one and one-half hours.
At about 11 a.m., November 14, 1965, Jerome Schmit, superintendent in charge of maintenance for the Wisconsin Southern Gas Company, arrived at the scene of the explosion and discovered the threaded cap on 4C missing. By this time the temperature was above freezing and the ice on the exterior of the regulator had melted. Mr. Schmit stated that he could see ice in the spring adjusting hole (4C) when he examined the regulator. While at the scene Mr. Schmit and Mr. Meyerhofer, another gas company employee, attached the regulator to the gas line to test it. They found it was not operating properly when tested with a gauge; there is no reduction in pressure downstream from the regulator.
Without the permission of the local fire chief, Mr. Schmit removed the regulator from the scene of the fire and took it to his office in Lake Geneva. The fire chief, Gilbert Amborn, had instructed Walter Hegner that none of the gas company equipment should be removed until the fire marshal had an opportunity to investigate the matter.
On Monday, November 15, 1965, another test of the regulator was conducted at the gas company's meter shop in Lake Geneva. The regulator worked nearly in normal fashion, except for a slightly higher pressure reading due to the weight of the water on the diaphragm. By the feel of the regulator a company vice-president, Harris Ide, determined that it was nearly filled with water. An investigator for the public service commission viewed the regulator the day following the explosion and found liquid of some sort in the mechanism. On November 18, 1965, Ide opened the regulator and removed 16 ounces of water, which he stated was slightly muddy in color. After the water was removed the regulator functioned normally.
During an evening recess of the trial in September, 1968, plaintiffs' expert, Marvin Salzenstein, dismantled Exhibit 4 and found bits of rust, dirt, a small part of a leaf and a little particle of fibrous material that looked something like cardboard.
Regarding the ice in the upper chamber of the regulator, plaintiffs' expert, Salzenstein, stated that atmospheric moisture could accumulate in the upper chamber as a result of the breathing mechanism of the diaphragm through the vent. He also said the 16 ounces of water could have accumulated in the regulator as a result of the spray from the fire hoses and the water running off the motel roof. William Cotton, another expert called by the plaintiffs-Pelzes, concurred in Salzenstein's opinions regarding the collection of moisture in the upper chamber. It was the opinion of both experts that the installation of Exhibit 4 in an upright, rather than inverted position, did not constitute good engineering practice.
George Bonier, an expert witness called by the defendant gas company, testified that water would accumulate in the upper chamber of the regulator from condensation but normally it would evaporate. At the defense counsel's request, Mr. Bonier made some freeze tests with a regulator identical to Exhibit 4. First, he placed about one and one-half ounces of water in the diaphragm and froze it. He then tested its operation under line pressure of 15 pounds per square inch. A normal operating level of the regulator is seven inches of water column; as the pressure increased in the regulator the one and one-half ounces of ice broke at 40 inches of water column allowing the regulator to function normally again. Bonier stated that the small amount of ice could only inhibit the operation of the over-protection-device which normally releases 16 inches of water column pressure. This over-protection-device is in the nature of a safety valve for release of extra high pressure. Before that release valve is needed there must be something else malfunctioning in the regulator device. The breathing mechanism and main regulator valve between the outside and inside gas line are not dependent upon the safety valve, but function according to the fluctuation of the diaphragm that stretches the full diameter of the regulator and moves up and down with the changes in gas pressure.
The second test performed by Bonier consisted of placing 16 ounces of water in the upper chamber and freezing it. With the 16 ounces frozen the regulator did not work at all; the 15 pounds per square inch of pressure flowed right through and produced equal pressure downstream from the regulator. Again, it should be observed that the function of Exhibit 4 at the Lakeview Motel was to reduce the main line pressure of 13 pounds per square inch to one-fourth pound per square inch (or seven inches of water column) on the appliance side of the line.
There was considerable testimony introduced respecting custom and usage of gas regulators in Wisconsin and particularly in the southeast area of the state. The upright use of several thousand regulators by the various gas companies servicing southern Wisconsin was introduced by defendant, Wisconsin Southern Gas Company. The make or style of regulator installed in these various locations is not clear, but most appear to operate similarly to Exhibit 4, with the atmospheric chambers not provided with water drainage facilities. Mr. Ide, vice-president of defendant gas company, stated that of the 24,000 regulators in use by them, 150 to 200 were identical to Exhibit 4 and also installed in an upright fashion.
Defendant gas company moved for a directed verdict prior to submission of the case to the jury; the trial court reserved its decision on that motion until the jury had a chance to act. The jury returned a verdict in which plaintiff Mark Pelz and all defendants were found causally negligent. That negligence was apportioned 85 percent to the defendant gas company, 14 percent to the defendants-Woracks, and one percent to the plaintiff, Mark Pelz. Damages were assessed at $80,000 by the jury for personal injuries. The court found the medical expenses to be $2,273.45 and loss of earnings $1,260.
On motions after verdict the court granted defendant gas company's motion for directed verdict, and defendants-Woracks' motion for a new trial as to both liability and damages.
In the first case involving property damage, plaintiff Phoenix Insurance Company of Connecticut appeals.
In the second case, plaintiffs Mark Pelz and Carl Pelz appeal, and defendants Frederick Worack, Georgia Worack and Phoenix Insurance Company of Connecticut seek review of the portion of the judgment dismissing their cross claims against defendant gas company, and granting plaintiffs, Mark and Carl Pelz, a new trial as to liability and damages.
The principal issue is whether it was prejudicial error to grant the motion of the respondent, Wisconsin Southern Gas Company, for a directed verdict and to dismiss both actions as to the gas company.
There are other issues which will be referred to in the course of the opinion.
The standard by which this court will review decisions on motions for a directed verdict are set forth in Zillmer v. Miglautsch (1967), 35 Wis.2d 691, 699, 151 N.W.2d 741:
"In determining whether or not the trial court was in error in failing to direct the verdict, this court must take that view of the evidence which is most favorable to the party (the plaintiff in this case) against whom the verdict was sought to be directed. Schumacher v. Klabunde (1963), 19 Wis.2d 83, 87, 119 N.W.2d 457; Mueller v. O'Leary (1935), 216 Wis. 585, 587, 257 N.W. 161. If there is any evidence to sustain a defense or a cause of action, the case must be submitted to the jury. Kielich v. Whittaker (1924), 183 Wis. 470, 198 N.W. 270. The weight and sufficiency of the evidence is for the jury (Jolitz v. Fintch (1938), 229 Wis. 256, 261, 282 N.W. 87), as is the weight to be given to the witness' positive or negative testimony. Conrardy v. Sheboygan County (1956), 273 Wis. 78, 82, 76 N.W.2d 560. Furthermore, it is basic that the credibility of the evidence and the inferences to be drawn therefrom are matters for the jury. Braatz v. Continental Casualty Co. (1956), 272 Wis. 479, 487, 76 N.W.2d 303. If there is any evidence other than mere conjecture or incredible evidence to support a contrary verdict, the case must go to the jury. Larson v. Splett (1954), 267 Wis. 473, 66 N.W.2d 181. Incredible evidence is evidence in conflict with the uniform course of nature or with fully established or conceded facts. Davis v. Skille (1961), 12 Wis.2d 482, 107 N.W.2d 458; Czerniakowski v. National Ice Coal Co. (1948), 252 Wis. 112, 31 N.W.2d 156."
In viewing the evidence most favorable to the appellants, as we must, we are of the opinion that the record does contain sufficient credible evidence to support the jury finding that the gas company was negligent. This negligence was as to the manner of the installation of the gas pressure regulator. We are convinced that this finding is not based upon speculation and conjecture.
It appears without dispute that the gas pressure regulator malfunctioned and that this malfunction was the principal cause of the explosion and resulting damage. It further clearly appears that the malfunction was caused by an accumulation of water which froze so as to prohibit the necessary movement of the moving parts which, in turn, permitted gas to enter the fixtures at a pressure greatly in excess of their tolerable range, causing the highly explosive gas to escape and which did explode when Pelz lit the match.
The regulator was the property of the gas company and was installed by it. The gas company intended to and did have the exclusive right to control and maintain the regulator. This is further evidenced by the wire seal on the valve-adjusting cap.
As between the parties involved, the Pelzes, Woracks, and the gas company, only the gas company had the right to maintain the regulator. The probabilities are that the appellants knew nothing of its function, its construction or maintenance. In any event, there is no evidence that any of the appellants in any way interfered with the regulator either before or after the explosion.
From the positive evidence of the manufacturer's bulletin, and the testimony of the experts, the jury could conclude that it was poor engineering practice and negligence to install the regulator with the relief-valve-inlet and vent in an upright position. Both the bulletin and the plaintiffs' experts agree that the moisture problem and possible malfunction are eliminated by inverting the regulator so that the moisture drains out by gravity.
We do not believe the fact that it could not be determined exactly how much water, and in turn how much ice, was in the regulator at the time of the explosion relegates the proof to unacceptable speculation or conjecture.
At the midnight hour the appliances and, consequently, the regulator were operating properly. After midnight the temperature dropped below freezing and before 8 a.m., the regulator and the appliances were seriously malfunctioning and the explosion occurred.
The regulator was installed outside near the eaves of the building. It had been raining the night before.
Regardless of the source of the water in the regulator, if it had been installed in an inverted position as recommended by the manufacturer the water or moisture would have drained to the extent that ice accumulation would not have caused the malfunction.
We are of the opinion the jury could find, based upon reasonable inferences, that the gas company could reasonably foresee that moisture could accumulate in the gas pressure regulator because of the position in which it was installed, and that the moisture could freeze and cause a malfunction of the regulator and a dangerous hazard to the users of its natural gas.
The gas company introduced a considerable amount of evidence to show that it was customary in the industry to install gas pressure regulators outside, with the vents in an upright position. It cites Raim v. Ventura (1962), 16 Wis.2d 67, 72, 73, 113 N.W.2d 827, as authority for the proposition that "where there is an avalanche of acceptability of a custom or usage, and where such general practice contravenes no established law, public policy, or common sense, it may be persuasive as to what is a rule of reason in a safe-place case."
Raim goes on to quote the common-law rule as follows, at page 73:
"`The proper standard of defendant's duty was the care which the great mass of mankind ordinarily exercise under the same or similar circumstances. Now and then it appears that the customary way of doing things is utterly disregardful of personal safety, where it is said, the mere fact that the way adopted was the customary way, is not a defense against the claim of liability. They are very extreme cases, quite different from one where men of judgment and experience commonly for a long time have been accustomed to arrange premises and instrumentalities for an ordinary business enterprise like a railroad, in a particular way, found by experience to be reasonably safe and convenient.' Jensen v. Wisconsin Central R. Co. (1911), 145 Wis. 326, 335, 128 N.W. 982."
In this instance, where the descriptive installation and maintenance bulletin of the company that manufactured the regulator and testimony of experts both stated the regulator should be installed in an inverted position, a custom to the contrary cannot require a finding, as a matter of law, that the installation was not negligent.
The gas company also ardently contends that the malfunction of the regulator was caused by the vandalous act of another person and as such constituted an intervening superseding cause which relieves it of responsibility.
In support of its claim of vandalism it points to the evidence which reveals that the cap over the valve-adjusting-screw-inlet was gone and the seal broken; that there was ice (as much as two to three inches) over this area of the regulator; and that when the regulator was taken apart it had 16 ounces of water in it, together with debris consisting of a small piece of a leaf, a small fragment of cardboard, and sand or dirt.
A thorough reading of the transcript (probably not available to the trial judge) reveals that two employees of the gas company, within a matter of minutes of the explosion, viewed the regulator and neither testified the valve cap was missing; both testified the regulator had a thin coat of ice on it but not that ice was built up around the valve inlet as stated in the trial court's memorandum opinion. One of the employees, a Mr. Kube, removed the meter and the regulator from the line within minutes after the explosion, — water from fire hoses was falling in this area; the regulator was placed alongside the building and some two hours later it was noticed the valve-inlet-cap was missing and the regulator covered with ice. The gas company employees then, without consent of the fire chief, took the regulator to their shop.
When and who removed the valve-inlet-cap is a matter of speculation; when the 16 ounces of water and the small amount of debris got into the regulator is also a matter of speculation and conjecture and, further, there is no proof there was 16 ounces of water in the regulator when the malfunction occurred.
As stated above, the regulator was operating properly at midnight and was not at 8 a.m. The evidence offered as to vandalism or tampering is too speculative to raise an issue of an intervening superseding cause.
Because we have concluded that the evidence is sufficient, and permissible inferences are sufficient to permit a finding of negligence on the part of the gas company, we do not reach the contention that the doctrine of res ipsa loquitur applies.
The appellants-Woracks contend there is no evidence sufficient to permit a jury finding of negligence on their part. Without an elaborate discussion of the evidence it is sufficient to state that it appears the Woracks had at least one-half hour in which they were aware that something was wrong with the gas supply, namely that much more gas was coming through the appliances than there normally should be. Reasonable caution should require them to notify their guests as to this condition and danger. In all probability, had Pelz been notified he would not have struck the match and neither he nor the property would have been damaged. The jury was justified in finding their failure to do so constituted causal negligence.
The trial court awarded a new trial to the Woracks in the interest of justice because of both the comparative negligence finding and the damages awarded to Mark Pelz.
It is entirely understandable that a new trial in the interest of justice was awarded to the Woracks after the verdict was directed for the gas company. The verdict was left with a finding of 14 percent of the causal negligence attributable to the Woracks and one percent to Mark Pelz.
The trial court also determined that the damages awarded to Mark Pelz in the amount of $80,000 for his personal injuries were excessive because of his remarkable recovery and limited residuals. This was an additional reason for the new trial in the interest of justice.
In our opinion the verdict in both cases should be reinstated as to negligence, causation and comparative causal negligence as found by the jury, and both cases should be remanded for a determination of damages. The property damage suffered by the Woracks and their subrogee, Phoenix Insurance Company, should be determined, and the damages of Mark Pelz should be viewed on the record, with a Powers rule option or a new trial limited to damages awarded to the plaintiff Mark Pelz.
By the Court. — Judgments reversed in part and affirmed in part and remanded for further proceedings consistent with this opinion. Plaintiffs in both actions to tax costs against defendant Wisconsin Southern Gas Company.