City of Atchison v. Acheson

• Decision Date: 10 May 1899
• Citation: 57 P. 248,9 Kan.App. 33
• Parties: CITY OF ATCHISON v. ATCHISON.
• Court: Kansas Court of Appeals

57 P. 248

9 Kan.App. 33

CITY OF ATCHISON v. ATCHISON.

Court of Appeals of Kansas, Northern Department, Eastern Division

May 10, 1899

Syllabus

1. The admission of incompetent testimony will not necessitate a reversal of a judgment, where it is apparent that the party was not prejudiced thereby.

2. Reversible error cannot be predicated upon the rejection of competent testimony, where the party afterwards examined the witness fully upon the matters rejected, or had an opportunity before the case was finally submitted to examine such witness fully concerning the same.

3. Instructions requested by the defendant, and refused by the court, examined, and held, that such instructions were given, so far as applicable, in the court’s general charge to the jury, and the other portions of such instructions were properly refused.

4. Reversible error cannot be predicated upon an instruction given, which, standing alone, is incomplete, but, when read in connection with the other instructions given, covers all the grounds of complaint urged against it.

5. This court cannot say that the trial court erred in overruling the defendant’s demurrer to the evidence, where the evidence tends to support every material allegation of the petition, and he fails to point out any particular in which it fails to establish a prima facie cause of action.

Error from district court, Atchison county; W. D. Webb, Judge.

Action by Alex. Acheson against the city of Atchison. Judgment for plaintiff. Defendant brings error. Affirmed.

Clifton B. Holbert, City Atty., for plaintiff in error.

Jackson & Jackson, for defendant in error.

OPINION

McELROY, J.

The defendant in error brought this action against the city of Atchison to recover damages alleged to have been sustained by plaintiff from falling into a pit or opening in one of the alleys of the city. On December 3, 1894, he was passing along upon the east side of South Fourth street, in the city, at a point about 150 feet from Commercial street, the principal business street of said city, about 9 o’clock in the evening. He had occasion to urinate, and he passed into an alley for that purpose. The alley was paved, and was of frequent use. At a point in the alley about 10 or 15 feet from the street, the plaintiff stepped into an opening about 4 feet in length, 20 inches in width, and 7 feet deep, which was walled with rough stone, with stone in the bottom. The plaintiff was by the fall for a time rendered unconscious, bruised, injured, and his hip bone broken. He presented a verified claim for damages to the city council, and afterwards filed his petition to recover damages. A motion to make the petition more definite and certain w as sustained, and the petition was amended. Thereafter a motion to make the amended petition more definite and certain was overruled. The defendant filed an answer to the amended petition, in substance: (1) A general denial. (2) Admitting that the defendant was a municipal corporation. (3) Alleging contributory negligence on the part of the plaintiff. (4) Alleging that at the time the injury occurred the plaintiff was intoxicated; that he was violating an ordinance of the city prohibiting an intoxicated person from appearing on the street; also, he was violating a certain other ordinance, prohibiting a person from an indecent exposure of his person. To which a general denial was filed by way of reply. A trial was had. The jury returned answers to special questions submitted, and a general verdict for the plaintiff. The defendant moved the court (1) to set aside certain of the special findings; (2) for judgment upon the special findings; and (3) for a new trial,— which motions were overruled. The defendant, as plaintiff in error, presents the case to this court for review, and alleges error in the proceedings of the trial court.

The plaintiff in error contends that the court erred in admitting incompetent testimony. Herein complaint is made: (1) That Dr. Wilson was permitted to testify: "Q. What, in your judgment, will be the effect of that injury, as to making that leg weaker than it was, and whether he will ever recover the natural strength of that leg? A. I don’t think he will ever have as good use of that limb as formerly,— natural strength." The objection was upon the sole ground that the question was leading. The objection did not challenge the competency of the testimony. The question was not leading. The objection was properly overruled. (2) That the plaintiff, Acheson, was permitted to testify: "Q. Mr. Acheson, I will ask you if you ever have been able to carry on your farming — transact business necessary to carry on your farm — since this injury? A. I have not carried on any farming since. Q. You may state to the court and jury what the value of your time and services, as lost since this injury, has been to you. A. My time to me is worth $500 a year on a farm." The plaintiff’s occupation at the time he received the injury was that of a farmer, buying, feeding, selling stock, and operating a blacksmith and repair shop. He superintended and carried on farming, employing such help as occasion required, and worked in the shop. The witness had testified fully concerning the character of work performed by him previous to his injury. It was improper for the witness, under the circumstances, to testify what his time was worth to him on a farm. The testimony should have been directed to what his time was reasonably worth. However, the whole scope of the witness’ testimony upon this subject tends to support the true measure of damages. The special findings of the jury show that it did not accept the plaintiff’s statement of the value of his time. The jury found that the plaintiff carried on, managed, and superintended his farm, and repaired plows and machinery in his shop, that the value of his time and services was $340 a year, and that by reason of his injuries he was permanently disabled from carrying on his usual occupation. It does not appear that defendant was injured by the error of the court in this respect. (3) That Ed. Phillips was permitted to testify: "Q. State what his condition was during the time you visited him, while he was confined to his bed,— especially as to his appearing to be suffering much pain, and as to complaint made by him in that respect. A. He complained of suffering a good deal in that hip that was hurt." The witness was present much of the time during the illness of the plaintiff at his home, assisted some in nursing and in taking care of him, and observed his appearance and apparent condition. It was therefore competent for the witness to describe his appearance as he did, and in that connection to state of wha t, if anything, he complained. Railroad Co. v. Johns, 36 Kan. 769, 14 P. 237.

Complaint is made that the court erred in excluding competent testimony. And herein: (1) That the court improperly refused to require the plaintiff, Acheson, to answer the following questions:

"Q. Did you stop on the road to the court house, anywhere?

Q. Up to the time that you got off the train, until you went to Mr. Shaw’s place of business, state whether or not you visited any saloons.

Q. Up to the time that you went to that drug store, state whether you had taken any drinks of intoxicating liquor.

Q. Did you buy anything there,— at the drug store?

Q. State whether or not you bought any intoxicating liquors there.

Q. State whether or not at that place you bought a bottle of whisky.

Q. State whether or not you drank any liquor at John Bowen’s drug store that evening.

Q. State whether or not you drank any intoxicating liquor at Turner Hall at that time.

Q. What kind of a place was it,— Turner Hall?

Q. Was it a saloon?

Q. Can you state what business he was carrying on?

Q. Was the man’s name Devoto,— saloon keeper?

Q. Is it not a fact that Devoto at that time kept a saloon?

Q. What did you stop at Devoto’s for?

Q. Did you stop at George Best’s on your way to the depot,— a saloon?

Q. Did you stop at Devoto’s, on the corner (another place of Devoto’s; another place Devoto runs, on the corner of Main and Third streets), on your way to the depot?

Q. Did you stop at any other place after you left Ayers, and before you got to the depot?

Q. State whether or not, at the time you entered the alley, you had just previously to that drank intoxicating liquors.

Q. Just prior, or during the evening, from the time you ate your supper— From the time you started up town from the depot the first time, up to the time you went into that alley, how many drinks of intoxicating liquor had you taken?"

(2) And that the court refused to permit Sullivan, a deputy street commissioner, who assisted in taking the plaintiff out of the hole, to answer the following questions:

"Q. What was his appearance, as to being under the influence of liquor?

Q. State whether or not, after you got him out,— he was in the light,— he appeared to be under the influence of liquor or not." (3) That the court struck out, on motion of plaintiff, the following testimony of Peter Ennis:

"Q. Was there any hesitancy or thickness in his speech?

A. His tongue was thick, and his talk was like the experience I have had with people drinking,— brought to the station, that had been drinking some." (4) And that the court refused to allow Dr. W. H. Bogle, a physician, who examined the plaintiff the next morning after the injury, to answer the following questions:

"Q. What did he say, if anything, in regard to how he was hurt, or whether he was hurt?

Q. Doctor, what, if anything, did Mr. Acheson say to you that morning in reference to how he became injured?

Q. What did you find in making this examination?

Q. What did he say, if anything, as to his condition at the time he was injured?" (5) And that the court...