(dissenting). Duty, it seems, calls me to
dissent as to the damages. I would not do so on any unsubstantial ground or where, to my view, the matter was doubtful. With due respect, I trust, for the opinions of others, here the error seems clear; the approved recovery to violate precedent, violate the logic of legal damages in such cases, violate legislative policy in general, and be detrimental to public welfare.
My judgment is not better than that of any of my brethren, but no judge can be truly loyal to duty without standing by firm convictions created by careful reflection and consideration.
In view of my oft expressed opinion respecting the ethical right of every employee to just compensation for inadvertent bodily injuries received in the course of his employment, regardless of the source of fault, it cannot be thought I am not keenly sensible to human suffering in such cases. But one must hold to legal, just, practicable standards as he understands the matter.
I repeat what I have urged before, — personal injury losses in service, necessarily, must enter into the cost of production to be paid, ultimately, by the consumer, according to an economic law as certain in its operation as any in nature,— there is no escape from it. Invisible and unappreciable as it is, — as much so as the forces which control the planets, the ultimate point of rest of all such losses is the body of the products entering into consumption. Humanity as well as conservation of human resources and welfare, require this great truth to be appreciated, as I have taken the liberty, sev*229eral times, of suggesting. Monaghan v. Northwestern F. Co. 140 Wis. 457, 122 N. W. 1066; Houg v. Girard L. Co. 144 Wis. 337, 352, 129 N. W. 633; Knudsen v. La Crosse S. Co. 145 Wis. 394, 130 N. W. 519.
However, tbe idea of compensation, whether vitalized by common-law rule or written law or left to rest in mere ethical standards, springs from one’s sense, of justice under all the circumstances, keeping in mind that full compensation is impossible, the attempt to effect it destructive, and that those who furnish opportunity for employment as well as the employed are to be considered in dealing with the matters which are the inevitable incidents of industry, the common misfortune and common burden.
• True logic in the field under discussion is stated in Guinard v. Knapp, Stout & Co. Co. 95 Wis. 482, 70 N. W. 671, and often approved here:
“Although the defendant may have committed a fault, it is not, for that reason, an outlaw nor beyond the care of the law. Society may still receive valuable service from it, and so is interested to preserve it against spoliation, by applying to plaintiff’s recovery a proper limit of compensation. It could not advance the interests of society to impoverish and bankrupt the unfortunate defendant. . . . Absolute indemnity is impossible. . . . The most [the law] aims to do . . . is to give some just compensation for the damages suffered.”
To go further in an effort to repair a personal injury loss than as above indicated, would establish a new rule, productive of waste, which legislatures all over the land have been striving to prevent. Exorbitant recoveries encourage litigation, demoralize the profession, discourage industry, prejudice general welfare, and bring down criticism upon the courts as inefficient to maintain a practicable standard of justice. Just- compensation to the injured is a legitimate part of created things; any excess with its large public and private incidental expense, constitutes waste, abnormally increasing the price of consumable things, decreasing indus*230trial activity and opportunity for labor, bearing down wages and up tbe cost of worth-while existence. From any viewpoint, courts should co-operate with the lawmaking power to make recoveries certain and economical, where there is a right to recover, but always within reasonable limits.
The foregoing prefatory remarks, seem proper as a basis for what I may say as to the particular recovery. To appreciate my view of the case, it must be surveyed as I read the record.
The boy was sixteen years old. He had substantially entered into his real place in the social state. He was twenty at the time of the trial. He was rather dull, without education or capacity for much development, and could not well be thought to have had fair prospect of rising above the level of common labor. He was in the hospital but a few days. His case ran the usual course to a substantial recovery. His general health and working capacity were not materially impaired. He yet, occasionally, senses- some abnormal feeling, akin to pain. He returned to work for appellant, as he said, in about three weeks and continued some three years and till after the first trial of this case. He worked elsewhere till about the time of the last trial. He said he could not wear a false eye because it hurt him; but there was no expert evidence as to difficulty in that regard. It is to be presumed he could, as every one in such circumstances has to, accustom himself to use of a false eye, substantially restoring his former personal appearance. In short, the case is ordinary, so far as the injury is concerned, and rather below it as to pecuniary loss. If it so looked to my brethren I hardly tbi-nk the $7,000 judgment would have been approved.
What does the recovery mean- under the circumstances? The service activity of such a person is never regular. There are interruptions by causes too numerous to- mention, reducing average working time for life, probably, to 250 days per year and average yearly wages to $350 or less. The *231expectancy of life was forty-seven years. In the period of old age, working time, efficiency, and remuneration would be greatly reduced. Interest on $7,000 will afford more than the full wage value of his life and leave, considering his station, a large fortune. Looking at the matter in another aspect, the recovery is equivalent to a life annuity for the man of $25 per' month. Does the law contemplate any such thing ?
True, there may be large attorney’s fees to be paid, but the law does not contemplate any enhancement of the recovery on that account. How much, as a fair measure of the loss, under the circumstances, regardless of litigation? That is the question. In contemplation of law, expenses, so' far as the losing party should pay them for his adversary, are measured by the cost bill. An instruction to consider the additional cost to plaintiff in awarding damages, would be promptly condemned. So we deal with the $7,000 as given for loss, independently of the litigation.
Now are there precedents here for such a recovery as the one before us, — precedents for affording a person injured by loss of an eye without materially injuring health or working capacity, except for a brief period, the full value of his life in compensable labor feature?
The court refers to Olwell v. Skobis, 126 Wis. 308, 105 N. W. 707. It was this: A young, well educated, comely lady of experience in a profession which required good eyesight to enable one to serve well, — one able to earn more than a common laborer by far, and of good prospects, lost an eye. The case was extraordinary in many aspects. The injury practically destroyed the young woman’s valuable life prospects. The jury awarded $12,000. The trial court approved it. This court thought it manifestly excessive. The judgment was reversed on several grounds, rendering an option to take a new judgment impracticable. The court suggested that no sum in excess of $6,000 could be sustained on the evidence. *232Had the case been one for an optional judgment the amount would, doubtless, have been placed as low as $2,000 or $3,000. The court justified the decision by referring to the fact that, in general, recoveries in such cases had been for from $2,000 to $5,000. How can we say then that the court did not hold $6,000 to be the maximum for loss of an eye, even under very distressing circumstances, and that, in general, $5,000 to $2,000 is about right %
The court further refers to the recovery of $7,000 in Coolidge v. Hallauer, 126 Wis. 244, 105 N. W. 568. Plaintiff was a young mechanic. The circumstances showed loss-much greater than here. Probably through oversight, the-excessiveness was not referred to for reversal, counsel having-overconfidence in other points. The subject was not passed upon at all. Whether the court would have cut down the amount under other circumstances we can only he of opinion.. But it seems quite novel to refer to omission of counsel to bring such a matter to the attention of the court as a precedent to guide judicial footsteps in case of a contest.
Wysocki v. Wisconsin Lakes I. & C. Co. 121 Wis. 96, 98 N. W. 950, was not referred to. There plaintiff lost an eye, his face was badly disfigured, and skull fractured so that part of it, covering the brain, had to be removed. He was. confined to his bed some three months and, after a painful partial recovery, he was left a -wreck for life. A verdict of $8,000 was sustained. The case was highly extraordinary,, the loss of the eye being the smallest part of it.
Now as to foreign precedents, — there are isolated cases of large recoveries, explainable, in general, by special circumstances. Here is about as fair and full a collection of them as can be made: A man, aged thirty-five, able to earn a large salary, lost an eye and had his working capacity reduced one-half, was awarded $5,000. Johnson v. Mo. Pac. P. Co. 96 Mo. 340. A locomotive engineer from loss of an eye was unable to work for eight months, was put to considerable ex*233pense and disqualified from Ms occupation, recovered $3,000. Fast. St. Louis v. Dougherty, 74 Ill. App. 490. A young man, aged twenty-two, who lost one eye with usual incidents, recovered $2,000. Lemser v. St. Joseph F. Mfg. Co. 70 Mo. App. 209. Loss of eyesight by Roy of eighteen, in Red six w'eeks, — in opinion of physician would never he well, $3,000. New Jersey R. & T. Co. v. West, 32 N. J. Law, 91. A farmer lost an eye, suffered much pain, and his earning capacity was largely diminished, recovered $5,000. Texas & P. R. Co. v. Bowlin (Tex. Civ. App.) 32 S. W. 918. A recovery of $5,000 for such a loss was reduced to $2,000. Benagam v. Plassan, 15 La. Ann. 703. Man of twenty-three, for loss of Roth eyes, recovered $6,000. Bane v. Irwm, 172 Mo. 306, 72 S. W. 522. A machinist, thirty-six years old, for like loss recovered $3,300. Famous Mfg. Co. v. Harmon, 28 Ind. App. 117, 62 N. E. 306. A hoy of eight lost an eye,— recovery $2,500. Van Camp H. & I. Co. v. O’Brien, 28 Ind. App. 152, 62 N. E. 464. A blast furnace employee had Roth eyes seriously impaired, — equivalent to loss of one, his face was very seriously burned and hearing injured. He recovered $1,700. Ill. S. Co. v. Sitar, 98 Ill. App. 300, affirmed 199 Ill. 116, 64 N. E. 584. A man of fifty-one, earning a salary of $1,000 per year, — lost one eye, the other was seriously injured so as to render total blindness probable, recovered $12,000. Cummings v. Nat. & P. W. Mills, 24 R. I. 390, 53 Atl. 280. A young man of twenty-four lost one eye, his capacity for labor was considerably reduced. He obtained a verdict for $8,000. The amount was said to he excessive beyond anything that could he found, and reduction of $1,000 ordered. De la Vergne R. M. Co. v. Stahl, 24 Tex. Civ. App. 471, 60 S. W. 319. Eailway mail clerk for loss of an eye recovered $2,500. Cook v. Mo. Pac. R. Co. 94 Mo. App. 417, 68 S. W. 230. A man was made blind by an explosion in a stone quarry and was otherwise greatly in-jfired. He obtained a verdict.for $9,000 after six trials, *234which was said 'to be large but sustained under the circunU stances. Stearns v. Reidy, 33 Ill. App. 246, 135 Ill. 119, 25 N. E. 762. A medical student had one eye destroyed, rendering him unable to read with the other eye, destroying his life prospects and causing him intense suffering, recovered $7,500. Louisville v. Keher, 117 Ky. 841, 79 S. W. 270. A young man entering upon a career as a mechanic for which he had natural aptitude, lost one eye, causing probable deprivation of life prospects in his chosen field, recovered $5,000. The court, with some hesitation, refused to interfere. Cleveland, C., C. & St. L. R. Co. v. Tehan, 26 Ohio Cir. Ct. Rep. 457. A boy sixteen years old, very capable, would have been of capacity to earn $100 per month by his majority, lost sight of one eye. He suffered intensely for months and continued to suffer down to the trial. He recovered $5,000. Georgia, F. & A. R. Co. v. Lasseter, 122 Ga. 679, 51 S. E. 15.
With the foregoing' recoveries in courts at home and abroad, and the legislative policy in all civilized countries of the world, all the states of our Union where compensation acts have been adopted or proposed, the pending proposed bill in Congress, the schedule of rates for pensions for such losses, and established principles upon which compensation should be based, — we have a demonstration, it seems, that $2,000 to $3,000 for an ordinary case of loss of an eye is about fair. Anything more should challenge close attention, and much more be thought manifestly excessive.
I appreciate the length of this opinion, but think it is justified by the case and the purpose. There should be no thought of punishment in the minds of jurors, permitted to be efficient, as said.by this court in Potter v. C. & N. W. R. Co. 22 Wis. 615. Evidence to the contrary should receive efficient attention. The- sole thought of jurors should be, in case of liability, fair compensation for the loss suffered by the mutual misfortune. The amount of recovery in such *235cases is the dominant thing, yet often receives the least attention from defendant’s counsel and the courts. That, as it seems, comes from habitually overlooking the Code giving judicial authority, where the old system did not, to guard defendants against spoliation by the sympathy or indignation of jurors overmastering their judgment, or by some other cause.
Is there not need for some halting in the field discussed ? Is it not a discredit to our system, as vitalized by the administration of it, when such system is viewed as a science, that it permits a range of recoveries of $2,000 to $7,000 without any very great difference in situations ? If so, where is the fault ? Is it in the system or in its administration ? Is there not room for beneficial change other than by written law? Could there be such a range as suggested without the difficulty being in failure to impress upon juries the true logic of recoverable loss, and giving too much heed to unbridled arbitrary awards under lingering influence of the perversion that the judiciary is practically helpless where the award is not characterized by passion or prejudice ? I apprehend that if the trial court had given plaintiff the option to take half the amount of the jury award, or submit to a new trial, the ruling would have received approval here, and that such course would have been taken if the scope of judicial authority under the Code had been fully appreciated.
Vinje, J. I concur in the foregoing opinion by Mr. Justice MARSHALL.