Carpenter v. Village of Dickey, a Municipal Corporation

• Decision Date: 10 October 1913
• Citation: 143 N.W. 964,26 N.D. 176
• Court: North Dakota Supreme Court

143 N.W. 964

26 N.D. 176

CHARLOTTE M. CARPENTER v. THE VILLAGE OF DICKEY, a Municipal Corporation

Supreme Court of North Dakota

October 10, 1913

Rehearing denied November 4, 1913.

Appeal from District Court, La Moure County, J. A. Coffey, J.

From a judgment in plaintiff's favor, and from an order denying a motion for a new trial, defendant appeals.

Reversed and new trial ordered.

Judgment and order reversed and a new trial ordered.

Jones & Hutchinson, for appellant.

The question of the negligence of the village in permitting the hole to remain in the sidewalk was one for the jury, and not for the court to assume, as a fact. The matter was in dispute, in the evidence. Bauer v. Dubuque, 122 Iowa 500, 98 N.W. 355.

Negligence is not presumed from the mere fact that injury follows some act. Damages in cases like this one are compensatory only. Missouri, K. & T. R. Co. v. Hannig, 91 Tex. 347, 43 S.W. 508; Texas C. R. Co. v. Brock, 88 Tex. 310, 31 S.W. 500; St. Louis Southwestern R. Co. v. Smith, Tex. Civ App. , 63 S.W. 1064.

Damages by way of compensation for future medical aid, are not allowable. Nichols v. Dubuque & D. R. Co. 68 Iowa 732, 28 N.W. 44, 3 Am. Neg. Cas. 370.

The damages awarded are so excessive as to clearly indicate that they were awarded under the influence of passion and prejudice. Damages, in such cases, should be awarded fairly and justly, to compensate for the loss and injury. Kennedy v. St. Paul City R. Co. 59 Minn. 45, 60 N.W. 810, 12 Am. Neg. Cas. 154; Orleans v. Perry, 24 Neb. 831, 40 N.W. 417; Johnson v. St. Paul City R. Co. 67 Minn. 260, 36 L.R.A. 586, 69 N.W. 900, 1 Am. Neg. Rep. 93; Bennett v. E. W. Backus Lumber Co. 77 Minn. 198, 79 N.W. 683; Evans v. Iowa City, 125 Iowa 202, 100 N.W. 1112; Hoffman v. North Milwaukee, 118 Wis. 278, 95 N.W. 274; Fry v. Great Northern R. Co. 95 Minn. 87, 103 N.W. 733, 18 Am. Neg. Rep. 495; Northrup v. Haywood, 99 Minn. 299, 109 N.W. 241; South Omaha v. Fennell, 4 Neb. (Unof.) 427, 94 N.W. 632; Chicago, B. & Q. R. Co. v. Krayenbuhl, 70 Neb. 766, 98 N.W. 44.

M. C. Lasell and Knauf & Knauf, for respondent.

The evidence as to the necessity for future medical treatment, and as to the cost of same, is simple, and was a proper element of damages to submit to the jury, and the charge of the court upon such question stated the law correctly,--when read as a whole. McBride v. Wallace, 17 N.D. 495, 117 N.W. 857; Buchanan v. Minneapolis Threshing Mach. Co. 17 N.D. 343, 116 N.W. 335; Gagnier v. Fargo, 12 N.D. 219, 96 N.W. 841.

Contributory negligence, to avail the defendant, must be pleaded, and then proved. There is no allegation or proof of such negligence. Carr v. Minneapolis St. P. & S. Ste. M. R. Co. 12 N.D. 217, 112 N.W. 972.

The jury in its sound discretion may award damages for future pains, inconvenience, and future expenditures. Cole v. Seattle R. & S. R. Co. 42 Wash. 462, 85 P. 3; Illinois C. R. Co. v. Cole, 165 Ill. 334, 46 N.E. 275; Western U. Teleg. Co. v. Woods, 88 Ill.App. 375.

The damages awarded were not excessive. Quinn v. Long Island R. Co. 34 Hun, 331; Morrison v. Broadway & S. Ave. R. Co. 55 Hun, 608, 28 N.Y. S. R. 498, 8 N.Y.S. 436; Chicago v. Langlass, 66 Ill. 361; Galloway v. Chicago, M. & St. P. R. Co. 56 Minn. 346, 23 L.R.A. 442, 45 Am. St. Rep. 468, 57 N.W. 1058; Howe v. Minneapolis, St. P. & S. Ste. M. R. Co. 62 Minn. 71, 30 L.R.A. 684, 54 Am. St. Rep. 616, 64 N.W. 102; Furnish v. Missouri P. R. Co. 102 Mo. 438, 22 Am. St. Rep. 781, 13 S.W. 1044; Bitner v. Utah C. R. Co. 4 Utah 502, 11 P. 620; International & G. N. R. Co. v. Mulliken, 10 Tex. Civ. App. 663, 32 S.W. 152, 6 Am. Neg. Cas. 718; Beltz v. Yonkers, 74 Hun, 73, 26 N.Y.S. 106.

A new trial will not be granted on merely cumulative evidence. State v. Brandner, 21 N.D. 310, 130 N.W. 941; Heyrock v. McKenzie, 8 N.D. 601, 80 N.W. 762.

OPINION

FISK, J.

Action to recover damages for personal injuries suffered by plaintiff as a result of the alleged negligence of defendant village in failing to maintain its sidewalks in a reasonably safe condition for pedestrians. The complaint alleges and the plaintiff's proof tends to show that she, a widow lady thirty-eight years of age and the mother of four children, while walking on one of the sidewalks in such village after dark, stepped in a hole about 1 foot deep, and fell upon her left side, severely spraining her left ankle and otherwise injuring her person, and that such injury to her ankle is of a permanent nature, causing her much pain and suffering. Plaintiff offered testimony tending to show the dangerous character of such hole, and that it had existed a considerable time prior to the accident, while defendant sought to show that the hole was only a few inches deep, and furthermore, that it had not existed for a sufficient length of time to impute to defendant's officers knowledge of its existence. Upon these questions the testimony was, as usual in such cases, very conflicting, but we have no hesitancy in holding that the jury was fully warranted under the evidence in reaching a conclusion on the facts favorable to plaintiff's contentions. A review of the testimony in this opinion would serve no useful purpose, and would extend the opinion to an unwarranted length.

A verdict was returned in plaintiff's favor for the sum of $ 5,318.05, being the full amount prayed for in the complaint, pursuant to which a judgment was accordingly entered. Thereafter a motion for a new trial upon the statutory grounds of alleged newly discovered evidence, excessive damages, insufficiency of the evidence to justify the verdict, and errors of law occurring at the trial, was made and denied, and defendant appeals both from the judgment and from the order denying said motion.

The errors assigned and which are argued in the brief are predicated upon the giving of certain instructions, and upon the denial of defendant's motion for a new trial in so far as it is based upon the grounds of alleged insufficiency of the evidence, excessive damages, and newly discovered evidence. These assignments will be disposed of in the order above mentioned.

The portion of the instruction first complained of is as follows: "It is necessary for the plaintiff to prove, in order to recover, that on the 26th day of April, 1910, she was injured upon the said sidewalk within the village of Dickey; that at the time of said injury she was proceeding upon said street and sidewalk. It is also incumbent upon the plaintiff to prove that she had been damaged, and for you to determine from the evidence introduced under these instructions the amount of such damage, if any." It is argued that by such instruction the court attempts to set forth the facts necessary for the plaintiff to prove in order to maintain her action, and the court failed to enumerate all the necessary elements, and in this way the jury was misled. Counsel do not challenge the correctness of the instruction so far as it goes, but they complain that the court did not incorporate therein other essential elements necessary to be proved, such as the fact that the sidewalk upon which she was proceeding was defective; that the village had actual knowledge of such defect, or, in the exercise of reasonable care, should have known thereof; and that plaintiff was proceeding with due care, and did not contribute to the injury received. There is no merit in counsel's criticism of such instruction. The portion above quoted is a mere excerpt taken from the charge, and does not purport to enumerate all the things necessary for the plaintiff to prove in order to recover. Immediately following such part of the charge, the court instructed the jury as follows: "Before the plaintiff can recover in this action she must satisfy you, by a fair preponderance of the evidence, that the defendant was guilty of negligence in its failure to keep and maintain the sidewalk upon said street, at the time and place described in the complaint, in a reasonably safe condition; and the burden of proof, as I have already stated, is upon the plaintiff to establish by a fair preponderance of the evidence the amount of damages which she has sustained.

"The law imposes upon incorporated municipalities the duty to exercise reasonable care to keep its streets and sidewalks in a reasonably safe condition for use by persons traveling thereon. The village corporation is not an insurer against injuries received by reason of defects in its streets or sidewalks; if it maintains them in a reasonably safe condition it is not liable; and in this case, if you believe from all the facts and circumstances shown in the evidence that the place where the plaintiff claims to have been injured was in such condition for travel thereon, or thereover, that a person while in the exercise of ordinary care for her own safety would have passed safely over, then the defendant is not liable in this case.

"The village of Dickey is held to the exercise of reasonable care in the construction and maintenance of the sidewalks upon its streets."

The court then proceeds to accurately define reasonable care, and thereafter instructs the jury as follows: "The plaintiff alleges a failure on the part of the defendant to exercise such a degree of care and conduct, and this failure on the part of the defendant is called negligence; in other words, the plaintiff alleges that the defendant has been negligent in its failure to keep its sidewalks in a reasonable safe condition. The particular negligence of which the plaintiff complains is that there was a hole in the sidewalk, and that the same had existed in that condition for some time prior to the alleged accident; and that the defendant, its officers, and agents had actual notice for some time prior to the said accident. A village is...