Lommen v. Danaher, 165 Wis. 15. In Muenchow v. Roberts it was said: "The plaintiff is entitled to recover, if at all, the value of his bargain. The true measure of such value is the value of the land the defendant contracted to sell to him, estimated at the time the contract was broken, less what the plaintiff agreed to pay therefor." That rule, as before indicated, applies wherever the contract breached is characterized by any species of bad faith, even such as an agreement to sell land which the vendor has no title to, or sell without present right to convey, depending upon subsequently acquiring such right. A full discussion of the subject will be found in Arentsen v. Moreland, supra. Applying the foregoing to the situation here, it seems that the trial court erred in denying relief to the appellant. He was entitled to the full benefit of his bargain. That requires the difference between the fair market value, at the time of the breach, of the property he was to sell respondent, less the incumbrances thereon, and the like value at such time of the Montana land less the $22,000, which was to be paid in money, and interest from the time of such breach. That is in accordance with appellant's motion for judgment on the verdict of the jury. The result stated renders unnecessary consideration of the question of whether error was committed to appellant's prejudice in refusing to grant a new trial. The motion in respect thereto was an alternative. Had the court granted the motion for judgment, the result would have been a waiver of any errors against appellant in respect to the rejection of evidence which was the subject of the motion for a new trial. By the Court. The judgment is reversed, and the cause remanded for judgment in plaintiff's favor in accordance with this opinion. SIEBECKER, J., dissents. Glasheen v. Wisconsin T., L., H. & P. Co. 165 Wis. 24. GLASHEEN, Respondent, vs. WISCONSIN TRACTION, LIGHT, HEAT & POWER COMPANY, Appellant. December 6, 1916-January 16, 1917. Street and interurban railways: Injury to passenger in alighting: Findings of fact: Evidence: Sufficiency: Competency: Testimony of physician: Subjective symptoms: Insufficient objection: Excessive damages. 1. In an action for injuries sustained while alighting from an interurban electric car, a finding by the jury that plaintiff was injured by striking his back against a post on alighting from the car is held not contrary to all reasonable probabilities, in view of the evidence and the fact that two juries have so found and two trial judges approved such finding. 2. After plaintiff had testified that he visited a physician for treatment and not with a view of using him as a witness, it seems that testimony of the physician as to what symptoms plaintiff complained of when he called for treatment was not objectionable. In any event, an objection to the physician's testimony before plaintiff had stated the purpose of his visit, sustained at that time but not renewed after plaintiff had made such statement, was not sufficient. 3. Upon evidence tending to show that plaintiff sustained serious injuries resulting in traumatic neurasthenia, that he lost considerable in weight and was made very nervous, affected with headache, loss of appetite, and suffered much decreased earning power, an award of $1,300, approved by the trial court, is held not so excessive as to warrant interference therewith on appeal. APPEAL from a judgment of the circuit court for Outagamie county: EDGAR V. WERNER, Circuit Judge. Affirmed. Action to recover for a personal injury. The claim of plaintiff was that May 4, 1914, he was a passenger on one of defendant's interurban electric cars destined for Kimberly, Wisconsin; that upon the car arriving there and coming to a stop for the purpose of taking on and discharging passengers, he attempted to alight; that while endeavoring, with due care, to take the last step, the conductor, with knowledge of his situation, negligently caused Glasheen v. Wisconsin T., L., H. & P. Co. 165 Wis. 24. the car to suddenly start, whereby he was thrown off and against a post, severely injuring him. The claim of the defendant was that plaintiff did not start to leave the car until it was in motion and that he then, carelessly and without fault of defendant, stepped off the same; and that he neither fell nor was thrown off the car, nor was injured by negligence of defendant or by colliding with a post. There were two trials. On the first the jury found all issues in favor of plaintiff and assessed his damages at $1,500. The verdict was set aside upon the ground, that, though there was evidence, probably warranting a finding that plaintiff collided with a post by being thrown off the car as claimed, or by losing his balance and falling off, the evidence did not warrant the belief that he received any serious injury. On the second trial, on evidence such as was presented before and additional evidence, the jury found, in effect, this: 1. Plaintiff was injured by striking his back against a post on alighting from the car. 2. The car was suddenly started while he was about to take the last step. 3. By reason thereof he was thrown against a post. 4. Defendant's servants did not exercise the highest degree of care reasonably to be expected in view of the character of the conveyance and the business. 5. Such failure produced the injury to plaintiff as a natural and probable result under the attending circumstances. 6. Such servants, as persons of ordinary care and prudence, ought to have reasonably foreseen that a personal injury to another might probably result from their conduct. 7. Plaintiff was not guilty of want of ordinary care proximately contributing to his injury. 9. It will take $1,300 to compensate him for his injury. Judgment was rendered on such verdict in plaintiff's favor. The cause was submitted for the appellant on the brief of Van Dyke, Shaw, Muskat & Van Dyke of Milwaukee, and Glasheen v. Wisconsin T., L., H. & P. Co. 165 Wis. 24. for the respondent on that of Minahan & Minahan of Green Bay. MARSHALL, J. Is the finding that respondent was injured by striking his back against a post contrary to all reasonable probabilities? Appellant's counsel so insists. It is considered otherwise. The location of the post, the direction respondent was facing when he was caused to suddenly part from the car, the direction it moved at the instant, and other circumstances shown by the evidence, as the jury may properly have viewed it, render the claim of respondent, as to his colliding with a post, quite within the realms of probability. Two juries have so found and two circuit judges have affirmed the findings. answer. Several questions put to a doctor as to what symptoms respondent complained of when he called for treatment were successfully objected to. Then respondent was examined to show that his visit was for treatment and not with a view of using the doctor as a witness. Then the latter was recalled and asked to relate what respondent said to him at the time of the consultation, and answer was given without objection. It is contended that error was committed by permitting such It does not seem that the evidence was objectionable under the rule that subjective symptoms brought to the attention of a doctor by a patient when he is being consulted in whole, or in part, for the purpose of using him as a witness by such patient cannot be shown; but it is a sufficient answer here that the particular question was not objected to. The situation was quite different when it was asked from that when the previous questions were put; so it would not be considered as covered by the objection thereto. The rule in Whitney v. Traynor, 74 Wis. 289, 42 N. W. 267, and similar cases does not apply. Some objections were made to instructions which have been examined with the result that, if there were inaccura Rau v. Freund, 165 Wis. 27. cies, or some part of the instructions was not strictly applicable to the situation, and neither satisfactorily appears,-it is not affirmatively shown that appellant was or may probably have been prejudiced thereby. The further claim is made that the verdict is excessive. As indicated in the statement, two juries have passed upon the matter. The first verdict of $1,500 was thought to be unwarranted for reasons which were quite fully met on the second trial, as the circuit judge and the jury thought. There certainly was evidence tending to prove that respondent was quite seriously injured; that his trouble was traumatic neurasthenia; that such a condition might probably result from such an occurrence as happened; that he lost considerable in weight and was made very nervous, affected with headache, loss of appetite, and suffered much decreased earning power. On the whole it does not seem that the damages are so clearly unreasonable that we would be justified in overruling the judgment of the trial court approving the verdict. The difficulty with which respondent was afflicted was of such a nature that his personal appearance, probably, materially aided the court and jury in determining the matter. By the Court. The judgment is affirmed. RAU and wife, Respondents, vs. FREUND, Appellant. December 6, 1916-January 16, 1917. Plats of land: Validity: Streets: Dedication: Reference to plat in conveyance: Estoppel: Intent. 1. Where a plat made by the owner of land and recorded, but not signed or acknowledged by any one, covered also an adjoining tract the owners of which never assented to or adopted it as a plat of their land, it did not constitute a grant or dedication of a strip marked thereon as a street in said adjoining tract. 2. A plat not entitled to record may be referred to, in conveying the real estate it embraces, for the purposes of description and |