Ellwein v. Town of Roscoe

• Decision Date: 08 November 1919
• Docket Number: 4452
• Citation: 174 N.W. 748,42 S.D. 298
• Parties: CHRISTINA ELLWEIN, Plaintiff and respondent, v. TOWN OF ROSCOE, Defendant and appellant.
• Court: South Dakota Supreme Court

42 S.D. 298

174 N.W. 748

CHRISTINA ELLWEIN, Plaintiff and respondent,

v.

TOWN OF ROSCOE, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Edmunds County, SD Hon. Joseph H. Bottum, Judge #4452--Affirmed Julius Sluing, Pat Morrison Attorneys for Appellant. E. D. Barron, James M. Brown, Attorneys for Respondent. Opinion filed November 8, 1919. Rehearing denied January 13, 1920

WHITING, J.

Action to recover damages for personal injuries. Verdict and judgment for plaintiff. Appeal from judgment and order denying a new trial.

In the cement crosswalks in appellant town gutter openings were left, which openings were covered by planks resting upon rods embedded in the cement. Respondent met another woman, just at one of these gutters. This other woman stepped one one end of the plank covering, and the opposite end flew up, tripping and throwing respondent down and causing her serious physical injury.

Respondent pleads negligence in the construction and maintenance of the plank covering; also that appellant had actual notice of such negligent construction and maintenance. She offered, and the trial court received, evidence that tended to prove that this covering was in an improper condition long after it was constructed and a considerable time prior to the alleged accident. This evidence also tended to corroborate the evidence of faulty construction and to prove the negligent maintenance pleaded; incidentally it tended to establish constructive notice of the defective condition. The receipt of this evidence is assigned as error. The only objection on which this assignment can be predicated is that such evidence was "not within the issues of this case and incompetent." That it was competent on the question of negligent maintenance is clear. But appellant contends that it was not "within the issues," as it tended to prove constructive notice of the defective condition when only actual notice was pleaded. Appellant's remedy, in case there was no evidence of actual notice was by a motion to strike out such evidence, or a request that the court caution the jury to consider the evidence only upon the question of whether the original construction was proper.

It is evident from the whole record that the trial court tried the case upon the theory that the pleadings were sufficient to sustain proof of constructive notice of the alleged defective condition of the plank covering. To object to this evidence as "not within the issues" was insufficient to base error, if any, in the court's trying the case upon the theory above noted. The interposition of an objection should not be the mere setting of a hidden trap to be sprung upon motion for a new trial and upon appeal. Unless the objection is one that cannot be cured, a general objection is insufficient. As said by the territorial court in Caledonia Min. Co. v. Noonan, 3 Dak. 189, 14 NW 426:

"If parties desire to avail themselves of ... objections, they must make them in the trial court, with such particularity and so specifically that this court can see that such trial court has passed upon the very question presented here."

We believe that the above announces a just rule and provides a guide that the appellate court should follow. Certainly this court cannot say that the objection interposed called attention to the fact that constructive notice was not pleaded. We must presume that, if the attention of the court and respondent had been properly called to this fact, if it was a fact, respondent would have immediately asked to amend the complaint to conform to the proof.

Respondent testified, over objection, as to what she paid for medicine bills, hospital charges, operations, etc. Appellant assigns as error the admission of this evidence, and urges that there is no testimony that these payments were reasonable, and it asserts a well-established rule when it says that "the reasonableness of the charges ... must be established." But again appellant has failed to pursue its proper remedy. Respondent's evidence as to what she paid was competent and was properly received. If she failed to prove by further testimony the reasonableness of these payments, it constituted a mere failure of proof, which rendered immaterial the proof as to what she had paid. A motion to strike the evidence, or a request for an instruction taking these elements of damages from the jury, would have fully protected appellant in its rights. Kolka v. Jones, 66 AmStRep 615.

Appellant assigns as error the receipt of answers to . certain questions asked of respondent's expert witness. A consideration of one question is sufficient. A doctor was asked:

"And basing your opinion, doctor, upon the evidence and statements from her as to how the injury she received at Roscoe occurred, and upon your original examination and treatment of her, and upon your examination, both physical and X-ray, in your opinion would the injury which she suffered be considered the predisposing cause of the present condition of her hip?"

The objection which appellant now urges, and the only one urged, is that "no proper foundation had been laid." Appellant urges, and has cited numerous authorities holding, that an expert cannot properly be asked an opinion based upon statements that have been made to...