Osborne v. City of Detroit

• Decision Date: 25 October 1886
• Citation: 32 F. 36
• Parties: OSBORNE v. CITY OF DETROIT.
• Court: U.S. District Court — Eastern District of Michigan

32 F. 36

OSBORNE v. CITY OF DETROIT.

United States Circuit Court, E.D. Michigan.

October 25, 1886

Syllabus by the Court

In an action for injuries occasioned by a defective sidewalk, it is not error to permit a witness to testify that, about two months before the accident, he and his wife met with an accident at the same place.

Where the plaintiff claimed to be paralyzed by the fall, it is not error to permit her medical attendant, who had not been sworn, to demonstrate her loss of feeling to the jury, by thrusting a pin into the side plaintiff claimed to be paralyzed.

Evidence is properly admissible as to the condition of the sidewalk in the immediate neighborhood of the spot where the accident occurred, if it be so near the place of the accident that a person examining the walk there would be likely also to notice the defect where the accident occurred.

It is also competent to show that the walk was repaired about a week after the accident, as tending to show that the walk was out of repair at the time of the accident.

A statute passed after the accident had taken place, limiting the amount of recovery in such cases, was held to be prospective only, and having no bearing upon the plaintiff's right to recover full damages. A statute should be held to operate prospectively only, unless its terms show clearly a legislative intent that it should have a retroactive effect.

The accident occurred upon a sidewalk in front of property belonging to the city, but in charge of the police commissioners, who were appointed by the governor of the state. Held, that it was the duty of the city to keep the sidewalk in repair, and that such duty was not lessened by the fact that the lot was occupied by agents of the state.

The testimony showed that plaintiff walked along the street without paying attention to the sidewalk, and that it was notoriously rotten, so that any one could see the earth beneath the plank. Held, that the question of contributory negligence was for the jury.

There was no error in calling the attention of the jury to the fact that the accident occurred in front of the police station and within sight of the officers whose duty it was to have charge of the station.

The fact that the plaintiff did not send for a physician until some time after the accident had occurred, was held proper evidence of contributory negligence to go to the jury, but not conclusive.

Where the plaintiff suffered a complete paralysis of the right side, held, that a verdict of $10,000 was not excessive.

F. H Caufield, for plaintiff. H. M. Duffield, for defendant.

BROWN J.

The plaintiff in this case obtained a verdict of $10,000 for personal injuries received by her in falling upon a defective sidewalk upon the north side of Church street in this city between Michigan and Trumbull avenues. Defendant now moves for a new trial upon the following grounds:

1. The admission of the testimony of Bateson in regard to the accident to himself and wife, and the precautions they took afterwards. Bateson testified, in substance, to the defective condition of the walk at that place, and that about two months before the accident he and his wife met with a slight accident there, and that after that they always walked in single file. We take it that similar accidents, occurring in the same neighborhood, may be shown as evidence, not only of the actual condition of the walk, but as tending to show notice to the city. It is true that the Massachusetts cases hold that this evidence is not admissible, upon the ground that it raises a collateral issue which the defendant is not called upon to try, and he therefore may well claim to be surprised. The weight of authority, however, is decidedly the other way. See Delphi v. Lowery's Adm'x, 74 Ind. 521, in which all the former cases are reviewed. So far as the federal courts are concerned, the question has been put at rest by the case of District of Columbia v. Armes, 107 U.S. 519, 2 S.Ct. 840, which was also an action for damages received by a person from a fall caused by a defective sidewalk in the city of Washington. Upon the trial, a policeman who saw the deceased fall on the sidewalk, and went to his assistance, after testifying to the accident, was allowed to state that he had seen persons stumble over there, and remembered sending home in a hack a man who had fallen there, and that he had seen as many as five persons fall there. See, also, City of Chicago v. Powers, 42 Ill. 169; Railroad Co. v. Ruby, 38 Ind. 294; Quinlan v. Utica, 74 N.Y. 603; Dougan v. Transportation Co., 56 N.Y. 7; Kent v. Town of Lincoln, 32 Vt. 591; Darling v. Westmoreland, 52 N.H. 401; Moore v. Burlington, 49 Iowa, 136.

2. That the court erred in permitting the exhibition of the plaintiff and her condition to the jury by Dr. Gaylord. The doctor, who had not been sworn, exhibited the plaintiff to the jury, and thrust a pin into the right side of her face, her right arm and leg, and, from the witness' failing to wince, the jury were asked to infer that there was a complete paralysis of her right side. Objection was made to this upon the ground that the doctor was not sworn as to the instrument he was using, nor was the plaintiff sworn to behave naturally while she was being experimented upon. It is argued that both the doctor and plaintiff might have wholly deceived the court and jury without laying themselves open to a charge of perjury, and that plaintiff was not even asked to swear whether the instrument hurt her when it was used on the left side, or did not hurt her when used on the right side; in short, that there was no sworn testimony or evidence in the whole performance, and no practical way of detecting any trickery which might have been practiced. We know, however, of no oath which could be administered to the doctor or the witness touching this exhibition. So far as we are aware, the law recognizes no oaths to be administered upon the witness stand except the ordinary oath to tell the truth, or to interpret correctly from one language to another. The pin by which the experiment was performed was exhibited to the jury. There was nothing which tended to show trickery on the part of the doctor in failing to insert the pin as he was requested to do, nor was there any cross-examination attempted from the witness upon this point. Counsel were certainly at liberty to examine the pin and to ascertain whether in fact it was inserted in the flesh, and, having failed to exercise this privilege, it is now too late to raise the objection that the exhibition was incompetent. It is certainly competent for the plaintiff to appear before the jury, and, if she had lost an arm or a leg by reason of the accident, they could hardly fail to notice it. By parity of reasoning, it would seem that she was at liberty to exhibit her wounds if she chose to do so, as is frequently the case where an ankle has been sprained or broken, a wrist fractured, or any maiming has occurred. I know of no objection to her showing the extent of the paralysis which has supervened by reason of the accident, and evidence that her right side was insensible to pain certainly tended to show this paralyzed condition. In criminal cases it has been doubted whether the defendant could be compelled to make profert of his person, and thus, as it were, make evidence against himself. The authorities upon this subject are collated in 15 Cent.Law. J. 2, and are not unequally divided, but we know of no civil case where the injured person has not been permitted to exhibit his wounds to the jury.

In Schroeder v. Railroad Co., 47 Iowa, 375, it was held not only that the plaintiff would be permitted, in actions for personal injuries, to exhibit his wounds or injuries to the jury, but that he might be required by the court, upon proper application therefor by the defendant, to submit his person to an examination for the purpose of ascertaining the extent of such injuries, and upon refusal might be treated as in contempt. See, also, Mulhado v. Railroad Co., 30 N.Y. 370.

But, even considering the testimony to have been improper, as there was not the slightest evidence offered by the defendant tending to show that the plaintiff was not completely paralyzed, (and in fact this was substantially admitted upon argument to the jury,) the defendant could not have been prejudiced by the testimony. We are not authorized to infer that the sympathies of the jury were moved to a greater degree by this exhibition than by the uncontradicted testimony that the plaintiff had suffered a complete paralysis.

3. That the court improperly allowed the testimony of the witness Moore as to the condition of the sidewalk from the rear of the station to the intersection or junction of Michigan avenue and Church street. The lot in front of which the accident occurred was a triangular piece of ground belonging to the defendant, the west 50 feet of which belonged to the same parcel of ground, but was not occupied. It was shown that the accident occurred about half the distance from the front to the rear of the building. The witness Moore was permitted to testify, not only as to the condition of the walk immediately adjoining the station-house, but also to the fact that the easterly end of the walk in front of the vacant portion of the lot was in a very bad condition, and that, as policeman, he had reported to Sullivan, the inspector of streets, that it was out of repair. The evidence tended to show that, while there were several planks loose immediately where the accident occurred, the easterly end of the walk beginning about 25 feet from that spot, and extending about 25 feet to Michigan avenue, was in a worse condition. The court was and still is of the opinion that plaintiff was not confined to...