Collins v. City of Janesville

• Decision Date: 24 September 1901
• Citation: 87 N.W. 241,111 Wis. 348
• Parties: COLLINS v. CITY OF JANESVILLE.
• Court: Wisconsin Supreme Court

111 Wis. 348

87 N.W. 241

COLLINS

v.CITY OF JANESVILLE.

Supreme Court of Wisconsin.

Sept. 24, 1901.

Appeal from circuit court, Dane county; Robert G. Siebecker, Judge.

Action by Ann Collins against the city of Janesville for personal injuries alleged to have been caused by a defective sidewalk. From a judgment in favor of plaintiff and an order denying a motion for a new trial, defendant appeals. Reversed.

Action to recover for personal injuries said to have been caused by a defective sidewalk. The defense covered all the material facts alleged in the complaint except the fact that plaintiff received an injury. It was claimed by defendant, among other things, that the injury was caused by a fall from a fence; also that the injury was attributable to contributory negligence on the part of plaintiff. There was evidence to establish the material allegations of the complaint and evidence to go to the jury on the question of where the injury occurred, the nature of it, and the subject of contributory fault on plaintiff's part. The defect in the walk, the nature of the injury and its effect, which the evidence established or tended to establish, were as follows: There was a hole in the sidewalk large enough to admit plaintiff's foot. The hole had existed for a considerable length of time to the knowledge of defendant and plaintiff as well. Plaintiff was traveling on the sidewalk about 8 o'clock in the evening in June, 1895, and while so traveling her foot went into the hole, causing her to fall and break the small bone of her leg a little above the ankle joint; also to strain and injure the ligaments, muscles and tendons of the leg and ankle at or near the point of the fracture. As a result of the injury plaintiff was confined to her bed about a month, was thereafter for about a month obliged to be carried when she moved about, and thereafter for about two and one-half months she was obliged to use a crutch or cane in walking. She suffered considerable pain. The use of the injured limb and foot has been restored except that plaintiff limps slightly, suffers some pain in damp weather, cannot use the limb as freely as formerly in walking up and down stairs or in dancing, the use of the limb by walking or standing for a considerable length of time causes some pain and some swelling of the ankle, and there is some chronic inflammation of the ligaments of the ankle joint and some enlargement of the tissues at that point, causing some tenderness and slight loss of motion of the ankle and foot. Plaintiff was about 14 years of age when she received the injury. The jury found in her favor in the sum of $2,800, for which judgment was rendered with costs.F. C. Burpee, City Atty., for appellant.

J. J. Cunningham, for respondent.

MARSHALL, J. (after stating the facts).

A witness who had observed the manner in which respondent used her foot in walking after she recovered from her injury, so far as recovery had taken place up to the time of the trial, was permitted against objection by appellant's counsel to answer a question as to what she saw regarding such use. That is assigned as error upon the ground that the witness was not an expert. We fail to see anything in the question to suggest that it called for opinion evidence of any kind. The answer that the witness gave was not responsive to the question and possibly was objectionable, but no motion was made to strike it out, so no error can be considered except as to the question itself. It was certainly competent for any one who had seen the girl walk to state how she handled her foot, whether she limped or favored it in any way, and that was the sole nature of the information called for by the question objected to.

A witness for plaintiff was permitted to testify that he knew at what place on the walk it was claimed respondent was injured and to state the place. The meaning of the question is not clear. It may have been directed to whether the witness knew where respondent claimed she was injured at or about the time he observed the defect in the sidewalk, or that he knew where she claimed on the trial the injury took place, or that he knew where she was reputed to have received the injury. In either event the evidence does not seem competent. But in view of the other evidence in the case we are not prepared to say it was prejudicial. The better way was to sustain the objection. Whether the witness knew where respondent or any one else claimed she was injured was not material to the case or to the witness's competency to testify in regard to the existence of the defect, which was the real purpose for which he was called.

A physician who testified as an expert was permitted to give his opinion, on the theory that there was evidence in the case tending to prove that respondent's injury included a strain of the ligaments of her limb extending from the place of the bone fracture down to the heel. As we read the evidence the assumption was well grounded. Dr. Pember, who treated the injured limb, testified that the fracture of the small bone of the leg was accompanied by a straining of the ligaments and other injuries that are characteristic of fractures about or near the ankle joint and also below that point. Dr. Harper testified that upon examination of the girl's foot he found that an abnormal condition of the ligaments existed about the ankle joint and at the upper portion of the heel bone. There is other evidence fully justifying the assumption complained of.

A long and somewhat indefinite question to one of the experts called by respondent was condemned by the court. Nevertheless, on respondent's counsel pressing for permission to have it answered, permission was granted, the circuit judge indicating that he was still of the opinion that the question was so indefinite as to be objectionable, but said that it might be answered at the risk of counsel. In Boltz v. Town of Sullivan, 101 Wis. 608, 77 N. W. 870, this court took occasion to criticize that method of dealing with a judicial question. We reaffirm what was there said. When an objection to evidence is properly made upon a trial it should be considered and the question presented decided according to the right of the matter as the court undertsands it. It is highly improper to decide such a question regardless of principles of law merely because counsel is willing to take his chances upon the reviewing court upholding his view. Such a decision has no element in it of judicial determination which appellate courts are created to review. It contains merely the judgment of the favored attorney, though in form it is the judgment of the court. In regard to the question itself we shall not spend much time. In our judgment it might have been made more concise. It is far from being a model, yet we are not prepared to say that it was prejudicially indefinite or that it contained any assumption which could not be referred to evidence in the case which the jury had a right to believe. It was evidently well understood by the witness. In that view we must hold that there was no reversible error committed in permitting it to be answered.

For the purpose of testing the weight that should be given to the evidence of one of the physicians who gave opinion evidence in favor of respondent, and who said that he discovered on an examination of her foot that there was some chronic inflammation in the ankle joint, he was asked if there was usually a recovery as to inflammation in the joint within six years' time, counsel stating, in effect, to the court and the witness, that he was speaking with reference to such a case as the one under investigation. A general objection to the question was sustained upon the ground that it did not call for an opinion based on such a case as the one made by the evidence. That was clearly wrong, because counsel said distinctly that he referred in his question to such a case. The witness should have been permitted to answer.

For the purpose of showing that respondent received her injury by falling from a fence at or about the line of the sidewalk, one of appellant's witnesses was asked a direct question as to whether she did not see the accident happen...