City of Friend v. Ingersoll

• Citation: 39 Neb. 717,58 N.W. 281
• Parties: CITY OF FRIEND v. INGERSOLL.
• Decision Date: 20 March 1894
• Court: Supreme Court of Nebraska

39 Neb. 717

58 N.W. 281

CITY OF FRIEND

v.INGERSOLL.

Supreme Court of Nebraska.

March 20, 1894.

Syllabus by the Court.

1. In an action for damages for personal injuries, where such injuries resulted in the death of the party injured, or are shown to be permanent, the Carlisle table of expectancy of life is competent and admissible in evidence, as bearing upon and tending to prove the expectancy of life, but not conclusive of the question, and is to be received and considered by the jury as any other evidence, and subject to the same rules as to its weight and sufficiency as other testimony; and its statements as to expected duration of life may be varied, strengthened, weakened, or entirely destroyed, by other competent evidence on the question of the expected continuance of life of the injured party, such as testimony pertaining to the health of the party at the time of the injury upon which the action is based.

2. Where an injured party, by reason of the injury which is the foundation of the action, has incurred necessary expense for medical attendance, nursing, etc., and has become liable or indebted for the payment of such expenses, the reasonable and fair valuation of such services may be recovered, although not yet paid by the party injured.

3. The evidence in the case held sufficient to sustain the verdict, generally, but that there was no testimony of the reasonable and fair value of the services of the physicians, and defendant in error allowed to file a remittitur of the sums charged for their services, and the judgment then to stand affirmed. If the remittitur is not filed, the case reversed and remanded.

Error to district court, Saline county; Hastings, Judge.

Action for personal injuries by Minerva C. Doxtater against the city of Friend. After recovering a judgment, plaintiff died, and Daniel Ingersoll, as administrator, was substituted as plaintiff. Defendant brings error. Conditional order.E. E. McGintie, J. D. Pope, and Robert Ryan, for plaintiff in error.

F. I. Foss and W. H. Morris, for defendant in error.

HARRISON, J.

Minerva C. Doxtater, plaintiff in the court below, commenced an action in the district court of Saline county, Neb., July 16, 1891, to recover damages of the city of Friend, in said county, for an alleged personal injury sustained by her April 5, 1891, in falling upon the sidewalk of said city; the fall being caused by the defective and unsafe condition of the sidewalk, according to the statements of the petition. In her petition she pleads that Friend was on the 5th day of April, 1891, a city of the second class, duly organized and incorporated, and in the exercise of its powers constructed a sidewalk on the south side of one of its streets, and further states that: “* * * In building said sidewalk the city was negligent in this, to wit, that it used poor material,--that which was unfit for the building of sidewalks for people to pass over; that said material was rotten and full of knots, and the boards were too wide, and not of sufficient thickness to have the necessary strength for people of ordinary weight to walk upon. And plaintiff says that at the place just mentioned the city did use, at one point, at or about 60 feet west from the northeast corner of said lot, and put in, a board about twelve inches wide and about three-fourths of an inch thick, laid upon three stringers, in which was a knot from six to eight inches wide, and about a foot and a half to two feet north of the south side of said walk, and which, when stepped upon, broke, and on account of the breaking of said knot the board became loosened, and was loosened and unfastened from the stringers from the south side of said walk to the north side, and said board was of poor material,--rotten and knotty; that it had been broken, and it was also loose and unfastened from the stringers, and unsafe for people to pass to and fro across; that the same had been known to this defendant for more than a month before the 5th of April, 1891. And plaintiff says that while passing along said sidewalk on the 5th of April, 1891, in company with her daughter, and while passing over said board, to wit, at a point about 60 feet west from the northeast corner of said lot, without any negligence on her part or upon the part of her daughter, her daughter stepped upon the board above mentioned, (which was in its proper position, but unfastened from the stringers, which fact was unknown to this plaintiff and her daughter,) and as the daughter of this plaintiff stepped upon said board, it being unfastened, it flew up, and as this plaintiff stepped forward, not having seen the board fly up, and supposing the sidewalk was all right, her foot caught, and she stepped into the hole made by the removal of said board, which was from eight to twelve inches deep, and thereby was thrown down. And plaintiff alleges that, by reason of the dangerous and unsafe condition of said sidewalk and of said board, she unavoidably fell, and her left limb, hip, and hip joint were thereby broken, sprained, bruised, crushed, and mangled, so that said plaintiff became lame and diseased, and has remained lame and diseased ever since the 5th of April, 1891. And the plaintiff further alleges and charges the truth to be that the said defendant, disregarding its duties in the premises, negligently and carelessly allowed said sidewalk above described to remain in such dangerous condition, and wholly failed, neglected, and refused to repair the same, and make the same safe and secure for the use and purpose for which the same was constructed, to the great damage of persons passing along and over the said sidewalk.” Then follows, in paragraph 4 of the petition, a second statement of the facts, descriptive of the fall, and the injury resulting therefrom, and the pain and suffering of the plaintiff, and its continuance up to the time of the filing of the petition, and a further allegation of the permanent nature of the injury. Paragraphs 5, 6, and 7 are as follows:

“(5) And plaintiff further says that she has been prevented from attending to her necessary duties and vocation all of said time, and been put to a great deal of trouble and expense, to wit, amounting to the sum of $3,457.15, as follows:

+---------------------------------------------------+
                ¦Bill of Dr. Hewitt                       ¦$ 96 65  ¦
                +-----------------------------------------+---------¦
                ¦Bill of Dr. Watson, assistant            ¦10 00    ¦
                +-----------------------------------------+---------¦
                ¦Nursing                                  ¦144 00   ¦
                +-----------------------------------------+---------¦
                ¦Board and washing                        ¦42 00    ¦
                +-----------------------------------------+---------¦
                ¦Extra help                               ¦96 50    ¦
                +-----------------------------------------+---------¦
                ¦Extra fires, lights, bandages, and cotton¦6 00     ¦
                +-----------------------------------------+---------¦
                ¦Loss of time                             ¦62 00    ¦
                +-----------------------------------------+---------¦
                ¦Damages for injury                       ¦3,000 00 ¦
                +-----------------------------------------+---------¦
                ¦                                         ¦$3,457 15¦
                +---------------------------------------------------+
                

That all of this has been spent in and about trying to get healed and cured of said injuries, and for expenses attendant thereto.

(6) And said plaintiff alleges that on the 7th day of July, 1891, this plaintiff duly presented in writing to defendant, the city of Friend, her claim against said defendant, duly verified by the oath of this plaintiff, and demanded payment of the same, and that said defendant then and there refused to pay the same, or any part thereof.

(7) And plaintiff says that she has been, up to the time that she sustained the injury aforesaid, a skilled nurse, and that by reason of said injury aforesaid she has, since said 5th day of April, 1891, been a constant burden and care to herself and her friends.”

The prayer is for judgment in the sum of $3,500.

The defendant city filed answer as follows: “And now comes the above-named defendant, and, for answer to the plaintiff's petition herein filed, denies that in the building of said sidewalk, as set forth in plaintiff's petition, that said city was negligent; denies that the material used in the construction of said sidewalk was poor; denies that the defendant had any notice, or knew, of the defects in said sidewalk, as set forth in plaintiff's petition; and, further answering, denies each and every other allegation in plaintiff's petition contained.”

Of the issues thus formed, on the 18th day of February, 1892, there was a trial to the court and a jury, which resulted in a verdict for the plaintiff in the sum of $1,050. The city filed a motion for a new trial, which was overruled, and judgment was rendered for the plaintiff for the amount fixed by the verdict, and for costs; and the case was brought here by the city, on petition in error, for our consideration.

The counsel for plaintiff in error, in their brief, first call our attention to the allegations of the plaintiff's petition on the subject of the negligence of the defendant city, and the evidence produced on the trial, directed thereto,--quoting quite largely from the testimony,--and insist, in an extended and able argument, that the evidence was not sufficient to sustain the verdict, especially when viewed in connection with the statements of the petition. We have examined the petition, and conclude that it states a cause of action, founded upon the negligence of the city by its proper...