City of Englewood v. Bryant, 14018.
| Decision Date | 24 May 1937 |
| Docket Number | 14018. |
| Citation | 68 P.2d 913,100 Colo. 552 |
| Parties | CITY OF ENGLEWOOD v. BRYANT. |
| Court | Colorado Supreme Court |
Rehearing Denied June 14, 1937.
In Department.
Error to District Court, Arapahoe County; Samuel W. Johnson, Judge.
Action by May Bryant against the City of Englewood, a municipal corporation. Judgment for plaintiff, and defendant brings error.
Reversed and remanded on condition of remittitur.
H. H Davies, of Englewood, and John W. Shireman and N. L Comstock, both of Denver, for plaintiff in error.
William L. Boatright and Claude W. Blake, both of Denver, for defendant in error.
Defendant in error is hereinafter referred to as plaintiff, and plaintiff in error as the city.
Plaintiff brought this action against the city claiming damages in the sum of $400 for medical attendance, hospitalization, and nursing, plus $5,000 for physical injuries, pain, and suffering, all occasioned by a fall on a defective sidewalk. On a verdict in her favor for $2,700, judgment was entered. To review that judgment the city prosecutes this writ. The thirteen assignments are argued under two propositions: (1) The refusal of the court to instruct on mitigation of damages due to plaintiff's failure to exercise proper care and follow the directions of her physician; (2) alleged erroneous instructions to the jury to consider plaintiff's claim for hospitalization and nursing, in the face of undisputed evidence that she had neither paid nor incurred liability therefor.
1. Counsel for plaintiff admit that the city's refused instruction on her duty to minimize damages by reasonable care and obedience to medical directions correctly states the law. It is supported by Martin v. Grant, 90 Colo 300, 307, 8 P.2d 764. They maintain, however, that there was no evidence to support it. In this we think they are correct. It seems futile to attempt to establish this negative by any abstract of the testimony. Suffice it to say that the only portion thereof, arising to the dignity of a presumption, was the doctor's direction to put weight on the injured limb. Plaintiff's undisputed testimony was that this was impossible because of the soreness and pain incident to delayed healing, and the physician testified that had this fact been anticipated such directions would not have been given.
2. The entire claim of $400 for medical services, hospitalization and nursing went to the jury under instructions which would permit its allowance. For aught we know that sum was so allowed as a part of the verdict. It is clear that medical services and hospitalization were paid for by the county or furnished by the hospital and that plaintiff neither paid these items nor incurred liability therefor. The city tendered an instruction withdrawing them. It was erroneously refused. Rio Grande S. R. Co. v. Campbell, 44 Colo. 1, 19, 96 P. 986; Morris v. Grand Avenue Ry. Co., 144 Mo. 500, 46 S.W. 170.
In answer thereto counsel for plaintiff cite sections 5 and 7 c. 186, pp. 671, 675, L.1923, and sections 8905, 8906, 8907, C.L.1921. Said chapter 186 provides for the care of certain poor persons, of whom plaintiff was presumably one, at the Colorado General Hospital, and said section 8907 specifies the circumstances under which persons shall be liable for the expenses thereof to the county, which is primarily indebted. Hence, it is...
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