City of Central City v. Engle

• Citation: 91 N.W. 849,65 Neb. 885
• Decision Date: 09 October 1902
• Docket Number: 11,898
• Parties: CITY OF CENTRAL CITY v. MAMIE ENGLE
• Court: Supreme Court of Nebraska

91 N.W. 849

65 Neb. 885

CITY OF CENTRAL CITY v. MAMIE ENGLE

No. 11,898

Supreme Court of Nebraska

October 9, 1902

ERROR from the district court for Merrick county. Tried below before HOLLENBECK, J. Reversed.

REVERSED AND REMANDED.

John C Martin and W. T. Thompson, for plaintiff in error.

J. E Dorshimer and John W. Sparks, contra.

AMES C. DUFFIE and ALBERT, CC. concur.

OPINION

AMES, C.

The defendant in error, plaintiff below, who is a married woman living with her husband, prosecuted this action to recover damages for personal injuries suffered while walking upon one of the sidewalks of the defendant city, alleged to have been defectively constructed, and to have negligently been permitted to become and to remain out of repair so as to be a source of danger to persons making use of it. The plaintiff alleged that by reason of her injury she "has suffered constant and severe pain and has been continuously and is now at the time of verifying this petition, wholly unable to perform her household duties, and by reason of the aforesaid injuries is, and has become a cripple for life." It is not alleged that the plaintiff, who was about 41 years of age, was or had been or anticipated being the owner of any separate estate or property, or engaged in any trade, business or service separate from her husband, or in the performance of any duties except those pertaining to her husband's household. The answer was, in substance, a general denial. On the trial the plaintiff was permitted to testify, over objection by counsel for the defendant, that her "earning capacity," at and before the time of the happening of the accident, was $ 7 per week, and at the time of the trial was "nothing at all," and that shortly prior to suffering the injury she had received that wage. At the conclusion of the trial the court of its own motion gave the following instruction: "If under the evidence and the law you find for the plaintiff it will be your duty to fix the amount of her damages. In doing so you should carefully consider the nature, extent and character of the injury sustained, whether the disability, if any, is temporary or permanent, partial or total, and what degree of disability. The age of the plaintiff and her reasonable expectancy of life may be important, for you should allow not only for damages already past but for all damages which would naturally result from the injury whether in the past or future. You should find from the evidence how much money plaintiff would have been reasonably expected to earn if she had not been injured as alleged, and how much she was, and is, and will be able to...