Shippy v. Village of Au Sable
| Decision Date | 17 April 1891 |
| Citation | 48 N.W. 584,85 Mich. 280 |
| Court | Michigan Supreme Court |
| Parties | SHIPPY v. VILLAGE OF AU SABLE. |
Henry & Cornville, (Hanchett, Stark & Hanchett, of counsel,) for appellant.
Elliott & McLean, (O. E. McCutcheon, of counsel,) for appellee.
This case was before this court in the January term of 1887, and a judgment in favor of the plaintiff then reversed, and a new trial granted. Shippy v. Village of Au Sable, 65 Mich. 494, 32 N.W. 741. The case was then transferred from the Iosco to the Wayne circuit court. The declaration was amended in several respects, and the parties went to trial before Hon. GEORGE GARTNER, with a jury, which trial resulted in a verdict for $10,500 for plaintiff. When the case was here before, the chief neglect imputed to the defendant was the keeping and maintaining of a portion of the cross-walk to-wit, for about seven feet, "above and over the remaining portion of the cross-walk;" thereby rendering the same in that particular place in a condition unsafe for public travel. We held under the declaration and claim there made, that the defendant was not liable for an injury occasioned by a fall or step in the cross-walk, at the curb of the highway, a few inches, when such fall or step was a part of the original plan of the cross-walk. But, under the amended declaration and the plaintiff's proofs upon the last trial, it appears that the defect complained of was not a part of the original cross-walk, or of any subsequent plan of it, but was caused by the interference of one Selig Solomon, and the neglect of the city authorities to remedy it when it was brought to their notice. The declaration avers, and the proofs show, that a cross-walk was built and maintained by the village across Stockman street by and along the westerly side of River street, where such street intersected Stockman street; that such cross-walk was planned and constructed by said village even and level with the sidewalk on the westerly side of said River street, so that the surface of the sidewalk, where it joined the cross-walk, formed a continuous level with the surface of the cross-walk. The accident happened to the child, the plaintiff, in the September, 1881. About two months before that time Selig Solomon, who owned the corner lot, bounded southward by Stockman street, and eastward by River street built a new sidewalk along his premises on his River-Street front. He built this new sidewalk on top of the old walk, by placing 2X4 scantling on the old walk, and laying two-inch plank on the scantling. He did not stop at the end of the old sidewalk, but extended the new walk in the same manner from four to six feet beyond the corner, and upon and over the cross-walk, leaving a step or jog down onto the old cross-walk. The old cross-walk, at and beyond the pace where this new sidewalk was built over it, was broken, decayed, and misplaced. The step down was, as testified by different witnesses, from 4 1/2 to 18 inches. This condition of things remained for at least two months, and the city authorities had notice of it. On the 30th of September, 1881, the plaintiff, a little girl about three years old about dark in the evening, fell off this step into the broken cross-walk, and was seriously and permanently injured and crippled. Her father and mother were going from their home down town to make some purchases. The father was leading plaintiff, and the mother was wheeling a baby wagon, in which was a younger child, a baby. About 10 feet from the place of the accident the father was stopped by one Scott Buell, and engaged in conversation. The plaintiff let go his hand, and ran ahead, and fell off the step. There is no doubt but the accident was caused by the step or jog caused by Solomon in the building of his new side-walk. It is also certain enough that it was on a cross-walk within the lines of Stockman street. It is claimed by the plaintiff that the broken and misplaced condition of the old cross-walk at the point of the step also contributed largely to the injury. This is denied by the defendant, and testimony was submitted, in rebuttal of this claim of plaintiff, showing that the old cross-walk was in a good and sound condition. The jury, however, in answer to a special question, found that "at the foot of the step the cross-walk was broken up."
The first 10 assignments of error, argued together by the defendant's counsel in their principal brief, relate to the admission of evidence of hip disease, injury to hip and leg, and pain and suffering, and the refusal of the court to strike out such evidence, and the charge of the court upon that subject. The principal objection now made to this evidence is based upon the want of sufficient allegations in the plaintiff's declaration, and the case of Shadock v. Plank-Road Co., (Mich.) 44 N.W. 158, is relied upon in support of this objection. It may be that the declaration in this case is not sufficiently specific, upon the authority of that case, in its allegations as to the place and extent of the injuries received by the child, although it goes further than did the declaration in that case in its description of such injuries. It alleges in this respect as follows: "She, the said plaintiff, was then and there greatly hurt, bruised, injured, and wounded, and became and was sick, sore, lame, and disordered, and permanently crippled and deformed, for a long space of time, to-wit, hitherto and to this day; * * * and has become and is permanently disabled, crippled, and deformed." The plaintiff was permitted to show under this allegation, coupled with the following as to damages: "That from henceforth, during her whole life, she will be compelled to endure the suffering, anxiety, annoyance, and embarrassment arising from such disability, crippling, and deformity; that she will be deprived of social and other pleasures, which she might have otherwise enjoyed; and that she will not in the future, during her whole life, be able to transact and attend to her own affairs, and care for herself, as she otherwise could and would have done had not such injury occurred to her," -that the injury caused hip disease; that she was obliged to wear a Sayre hip splint; and that there were 15 holes discharging on her leg, from the body to the knee; of weak spells, nervousness, and poor eyes; and of trouble with her spine; and that she was permanently crippled and deformed.
I think that the objection to the declaration, in that it is not specific enough in its allegations of the details of plaintiff's injury, comes too late. It must be remembered that this case has been tried twice, and has been in this court once before. The first declaration was not as specific as the present amended one. It averred that by means of said fall the plaintiff "was then and there greatly hurt, bruised, and wounded, and became and was sick, sore, and disordered, and that for a long space of time * * * the said plaintiff had suffered great pain of body and mind, and still continues to suffer great pain of body and mind," etc.; yet on the first trial no objection was made to the declaration in this respect, nor was any question raised as to its sufficiency in this court. By this record it appears that the amended declaration was not demurred to, and nowhere in the case do I find this identical point made against the declaration. After verdict, a motion for new trial was made, and various reasons assigned therefor, but this is not one of them. The nearest approach to this subject is the thirteenth request, which is as follows: "From all the evidence in the case, and the pleadings therein, the plaintiff has not made out such a case as would entitle her to recover any damage." But, as will be shown hereafter, this obviously had reference to another or to other propositions. It is evident that the attention of counsel was not called to the case of Shadock v. Plank-Road Co., supra, until after the trial of this cause, which commenced on the 22d day of January, 1890. The opinion in the Shadock Case was handed down December 28, 1889, and was not published in the Northwestern Reporter until its issue of February 8, 1890.
The objections to the introduction of proof as to damages were not any of them aimed at the insufficiency of the declaration in specifying the place, nature, and extent of the injuries but for other reasons, as follows: The counsel objected to the mother testifying to what plaintiff's condition was before the injury, and what care she took of her, the calling in of physicians, and the treatment the child received, on the ground that this case and calling in of physicians and treatment was not an element of damage under the declaration. To which plaintiff's counsel replied that they did not introduce it to show damage, but that proper care was exercised by the parents after the injury. She, the mother, was asked, and testified without objection, as to the present condition of the child, and testified as follows: Afterwards the defendant's counsel moved to strike out all the testimony in the case "regarding the receiving of an injury, and what the injury was, on the ground that, under the pleadings in the...
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