Evans v. City of Council Bluffs

• Decision Date: 17 October 1919
• Docket Number: 32358
• Citation: 174 N.W. 238,187 Iowa 369
• Parties: JESSIE EVANS, Appellee, v. CITY OF COUNCIL BLUFFS, Appellant
• Court: Iowa Supreme Court

174 N.W. 238

187 Iowa 369

JESSIE EVANS, Appellee, v. CITY OF COUNCIL BLUFFS, Appellant

No. 32358

Supreme Court of Iowa, Des Moines

October 17, 1919

Appeal from Pottawattamie District Court.--O. D. WHEELER, Judge.

ACTION to recover damages for personal injuries occasioned by a fall upon a sidewalk. The negligence charged is that the city permitted ice and snow, which fell upon its sidewalk at a certain point, to become rough, rounded, and uneven; and that plaintiff, in attempting to pass over it, slipped and fell without any fault on her part. Judgment for the plaintiff in the court from which the appeal is taken. Defendant appeals. Reversed for a failure to give certain special interrogatories.--Reversed and remanded.

Reversed and remanded.

Henry Peterson and Louis W. Schneider, for appellant.

Thos Q. Harrison, for appellee.

GAYNOR J. LADD, C. J., WEAVER and STEVENS, JJ., concur.

OPINION

GAYNOR, J.

I.

On the 13th day of December, 1916, plaintiff fell upon a sidewalk in the city of Council Bluffs, and received injuries. Her claim is that the injuries were occasioned by the negligence of the defendant in permitting its walk to become obstructed by the accumulation of ice upon it, and while it was in that condition, she, in attempting to pass over it, fell and was injured, without fault on her part. Defendant denies that it was negligent in any degree; denies that it can be charged with any fault in respect to the condition of the walk, or the plaintiff's alleged injury.

The cause was tried to a jury, and a verdict returned for the plaintiff in the sum of $ 545. Judgment was entered upon the verdict. A motion for a new trial was subsequently filed and overruled. Defendant appeals.

Reversal is sought upon four grounds: That the court erred (1) in stating the issues to the jury, in that it submitted matters of which there was no evidence; (2) in instructing the jury on the question of constructive notice, and not clearly setting out what constitutes constructive notice; (3) in not submitting to the jury the special interrogatories requested by the defendant; (4) in failing to direct a verdict for the defendant, on the ground of contributory negligence.

We will consider these grounds in the order in which they are presented by the defendant.

The plaintiff, in her petition, claims that she sustained injuries to her back, spine, shoulder, side, and hip, and that, as a result of these injuries and the pain and suffering incident thereto, she suffered damages in a stated sum and asks to be compensated therefor. She further asked that she be compensated for nursing, medicine, and surgical attention made necessary on account of these injuries, in a stated sum. She further said that these injuries are permanent, and claimed for future medical care, attention, and nursing. In an amendment to her petition, she claims for injuries to the bones of her wrist, arm, and hand, saying that they were broken, fractured, and splintered.

No evidence of any injury to any part of her body was offered, except a fracture of both bones of the forearm at the lower third. She failed to offer any evidence that she paid, or obligated herself to pay, any sum of money for medical or surgical treatment, prior to the commencement of the suit. (The suit was commenced eight days after the alleged injury.) The only evidence offered, tending to show that she had incurred any expense for medical treatment, came from one Dr. Kelly, who visited her several weeks after the suit was commenced. He testified:

"I examined plaintiff's wrist, the 1st of February following the injury. [It appears that the suit was commenced on the 21st of December.] I administered treatment to her, and the reasonable value of this service is from $ 25 to $ 50."

The complaint is that, notwithstanding this state of the record, the court, in stating the issues to the jury, set out all these claims made by her, saying:

"The plaintiff claims she received serious permanent injuries, to wit: A bruising, contusing, and concussion of the back and spine, causing great pain, lameness, and stiffness therein, and severe pains in the head, which injuries will cause plaintiff pain, suffering, and stiffness during the balance of her natural life; a bruising and contusing of her shoulder, side, and hip, causing the muscles, nerves, and tendons thereof to be bruised, contused, and lacerated, causing her great lameness and stiffness, from which she will suffer during the balance of her natural life; a bruising, contusing, and serious injury to her arm, elbow, wrist, and to the muscles, nerves, and tendons thereof, and to the bones of her arm, shoulder, elbow, and wrist, causing the same to be bruised, torn, lacerated, and permanently injured, from which she will suffer during the balance of her natural life; that she was caused thereby to suffer great pain and mental anguish, and will so suffer therefrom in the future, and that, by reason of the aforesaid injuries to her back, spine, shoulder, side, hip, arm, elbow, and wrist, she has suffered damage to the extent of $ 3,500; that, by reason of such injuries she has been compelled to expend the sum of about $ 500 for medical care, treatment, medicine, nursing, and surgical operation."

That the plaintiff made exaggerated and inflammatory statements in her petition as to the injuries she actually received, this record makes certain. She received no such injuries, or, at least, offered no proof that she received such injuries. Instructions should be limited to those matters which the jury are called upon to consider. When the jury came to the consideration of plaintiff's injury and the amount she was entitled to recover, their consideration ought to have been limited to those injuries which the evidence tended, at least, to show she had sustained; and these extravagant claims, while quite common in pleading, ought not to be stated to the jury as claims for their consideration. If these claims have no support in the evidence, they are not for the consideration of the jury. The jury must base its findings, not upon the claims made, but upon the proof which is offered to support the claims, and no claim made in the pleading can be considered by the jury unless it has at least some evidence to support it. The court ought not, in submitting the case to the jury, to call them to the consideration of claims made in the petition which plaintiff has not attempted to support by some evidence at least.

However, the court, in its instructions to the jury, when touching upon the question of plaintiff's injuries, said to them:

"In the first place, it is shown that the plaintiff has suffered some damage or pecuniary loss by reason of the accident in question, and in some of the matters set forth in her petition. If you find from the evidence that the plaintiff has suffered some damage or pecuniary loss by reason of such accident, in some of the matters set forth in her petition, then she will be entitled to recover, and you should proceed to fix the amount of her recovery,"--and substantially limited the jury to the proof in fixing the damage, saying:

"If you find for the plaintiff, you should allow her such sum as will fairly compensate her for any damage she has shown by the evidence to have sustained by reason of such accident, so far as such loss is shown to have been occasioned by reason of the injury so received. The reasonable value of such medical care and attention as was procured for her, so far as the same was made necessary by reason of the accident in question, and not exceeding $ 500, claimed by her in her petition."

It will be noted that she claimed in her...