Ferguson v. Davis Cnty.

• Decision Date: 20 December 1881
• Citation: 57 Iowa 601,10 N.W. 906
• Parties: FERGUSON v. DAVIS COUNTY.
• Court: Iowa Supreme Court

57 Iowa 601

10 N.W. 906

FERGUSON

v.DAVIS COUNTY.

Supreme Court of Iowa.

Filed December 20, 1881.

Appeal from Davis district court.

This is an action to recover damages for injuries sustained by the falling of a portion of a county bridge of defendant, over which the plaintiff was passing. There was a jury trial, resulting in a verdict for plaintiff for $2,000. The defendant appeals. The material facts are stated in the opinion.Payne & Eichelberger, for appellant.

Trimble, Carruthers & Trimble and M. H. Jones & Son, for appellee.

DAY, J.

The bridge in question was constructed by Davis county, over Fox river, in 1863. The bridge was built entirely of oak timber, and was constructed of a span of about 40 feet, with an apron on each side about 14 feet wide, and was about 16 feet above the bed of the stream. The accident of which the plaintiff complains occurred on the tenth day of June, 1875. At that time the timbers of the bridge were badly rotted. As the plaintiff was crossing over the bridge in a funeral procession, in a two-horse wagon, in which were five other persons besides himself, a joist-beam broke off at both ends, leaving about 20 feet of joist and floor without support, and precipitating the team and wagon, and the persons therein, to the ground beneath, a distance of about 16 feet, whereby the plaintiff sustained injuries for which he sues.

1. This action was commenced on the third day of February, 1876. At the September term, 1875, of the board of supervisors, M. H. Jones, one of the attorneys of the plaintiff, presented plaintiff's claim for damages, and asked the board to act upon it. It is insisted by the appellant that the testimony of Jones is incompetent to prove the presentation of the claim, and that the presentation, filing, and action of the board on the claim must be made of record. We are clearly of opinion that the presentation of the claim may be proved by the testimony of the person who presented it. The board could not defeat the claim by refusing or neglecting to make any record of its presentation. Section 2610 of the Code simply provides that no action shall be brought against a county on an unliquidated demand, until the same has been presented to the board of supervisors and payment demanded. It is not required, as a condition precedent to the bringing of an action, that the board shall act upon the claim. The board, by refusing to act, or to make any record of their action, cannot deprive a party of the right to maintain an action. All that the party needs to do is to present his claim, and give the board a reasonable time to act. See White v. Polk County, 17 Iowa, 413. The plaintiff in this action gave the board from September to the following February, which certainly was a reasonable time. If the defendant acted upon and allowed the claim, it is a very easy matter for it to show that fact in defence. It is idle, however, to claim that the board may have allowed the demand, in view of the defence which the county is making. In our opinion, the proof of the presentation of the claim and demand of payment is sufficient to authorize the maintenance of this action.

2. One S. C. Bradley, who was a bridge builder, and had had considerable experience with white-oak timber, was introduced as a witness by plaintiff and asked the following question: “Will you state about what would be the average life of timber--white-oak timber--in a bridge?” The defendant objected to this question as not a question for an expert, but a matter of common observation. The objection was overruled. The witness answered as follows: “The age runs from seven to twelve years; but as a general thing they become unsafe at eight or nine years. Some timbers will last twenty years, while others would not last more than five or six years.” The action of the court in admitting this testimony is assigned as error. It is claimed that the life of timber is a matter of common observation, and that any farmer can give as good a guess on this question as a bridge-builder, carpenter, or any one else. It must be admitted, however, that the life of white-oak timber in a bridge is a matter which does not come within the observation of every one. And if it should even be conceded that farmers possess as much knowledge upon the question as a bridge-builder or carpenter, still there is no proof that the jury in this case was composed wholly, or even partially, of farmers. Conceding that the knowledge is such as may be acquired by observation, yet the matter is one which all persons do not have the inclination nor the opportunity to observe. It cannot be doubted that upon almost every jury empanelled there would be likely to be persons as ignorant respecting it as with regard to the most intricate questions of skill and science. The fact must be established by the testimony of persons who have acquired knowledge respecting it by experience or observation, and cannot be left to be inferred by the jury without proof.

The plaintiff was introduced as a witness, and among other things testified as follows: “Do you know or did you ascertain what the trouble was with your ribs?” “I did.” “What was it?” The defendant objected to this question because it calls for hearsay, and is incompetent because the witness is not an expert. The objection was overruled and the witness answered: “My ribs were fractured.” This action of the court is assigned as error. It is apparent that a fracture of the ribs may be of such unmistakable a character that the person having sustained the injury may have positive knowledge of the fact. In such case he does not give an opinion as an expert, but states simply a fact. Any one who knows a fact may testify in regard to it. It is not necessary that a witness should be an expert before he can be allowed to testify that his ribs were fractured. If his conclusions are not based upon sufficient knowledge, that may be shown upon cross-examination, surely a witness, without being an expert, may testify that his arm or his leg was broken, and he may have as satisfactory knowledge of the fracture of a rib.

4. The accident to the plaintiff happened on the tenth day of June, 1875. The plaintiff remained in bed from 15 to 18 days. In about 20 days he was able to get around on crutches. Between the eighteenth and thirtieth of July he drove the mower in harvest; in September he commenced hauling wood to town, but he did not make a hand to go to work, and do a full day's work, until the spring of 1876, when he went to farming, plowing, and planting. This action was commenced in February, 1876. It was tried in 1878, and reversed at the June term, 1879. See 51 Iowa, 220.^a1 It became a very material question, affecting the measure of damages, as to the extent and permanency of the plaintiff's injury. Henry Ferguson, the plaintiff's brother, was introduced as a witness, and testified as follows: “Had been acquainted with my brother Frank all his life; lived at father's house with him; waited on him after the accident, while bedfast; he complained of his back, foot, and breast; he was active and quick before he was hurt, and could stand hard work better than I could; never sick before that, except once with chills, 10 years before; has not been so active since; he remained at home two years after the accident before he moved to himself; during these two years he was not active, compared with what he was before; didn't work as much; knew of his getting down again, or being stopped from work and confined to the house, the fall of 1876, the day before the election; was helping me to ceil the cellar, and got down; had fever.” The witness was then asked the following question: “State whether he made any complaints while he was suffering at that time?” The defendant objected to this question, because incompetent and immaterial. The objection was overruled, and the witness answered: “He complained of his back.”

John E. Ferguson was introduced as a witness, and, among other things, testified as follows: “Plaintiff's health was good until the accident. He was active, and able to work hard. Not so active since. Have been when he was in bed, at times since the accident, and he had fever. He generally complained of his back. The spells would last from four days to a week or longer, and he would then be able to go to work again. He would do a hard day's work, and the next day be unable to do anything. Have worked with him since, in harvest field. There were three or four times he would quit work.” The witness was then asked the following question: “State why he quit, judging from what he said?” This was objected to, as incompetent. The objection was overruled, and the witness answered: “He would say he would have to quit and rest awhile; that his back was hurting him so that he could not sit up straight. This was in 1876 and 1878.”

Wesley McMains, a witness on behalf of the defendant, was asked, upon cross-examination, the following question: “Do you recollect plaintiff stopping to rest while at work, and saying that he must quit and rest on account of his back hurting?” The defendant objected, because not proper cross-examination, and incompetent and hearsay. The objection was overruled, and the witness answered: “Recollect of his complaining to me at one time, while at work, of his back hurting him, and he said he would have to quit and...