Fuller v. City of Jackson
| Decision Date | 10 June 1892 |
| Citation | 92 Mich. 197,52 N.W. 1075 |
| Court | Michigan Supreme Court |
| Parties | FULLER v. MAYOR, ETC., OF CITY OF JACKSON. |
Error to circuit court, Jackson county; ERASTUS PECK, Judge.
Action by Kate Fuller against the mayor, recorder, and aldermen of the city of Jackson for personal injuries caused by a defective sidewalk. Judgment for plaintiff, and defendant brings error. Reversed.
Challes E. Snow, for appellant.
Loud & Price, for appellee.
This case has been in this court once before, and will be found reported in 82 Mich. 480, 46 N.W. 721. The situation of the premises and the cause of the injury to plaintiff is sufficiently stated in the opinion filed by Mr. Justice GRANT upon the first hearing in this court. Upon a second trial the plaintiff recovered a judgment, and the case is again brought here by the defendant upon error. Many of the questions now argued were settled by this court in the opinion above noticed. We shall only discuss the errors assigned which were not before us when the case was here before.
The court below was requested to direct a verdict for the defendant. Under this request the defendant's counsel apparently for the first time, makes the point that the declaration contained no averment that the street where in the injury was received had been a public highway or street for a period of 10 years, and also that there was no proof showing such to be a fact. There was proof tending to show that Pearl street, where the accident happened, had been for than 10 years a public highway. This averment was not necessary under the statute. [2] The statute provides It will be seen by this proviso that the 10-years use applies only to public highways in townships. A city is bound to keep a sidewalk in safe condition for public travel from the time it is built and opened for travel. The case of Clark v. Village of North Muskegon, 50 N.W 254, was decided by us without a careful examination of the statute, as it was conceded by plaintiff upon the argument that it was necessary to prove on the trial the existence of the street for the period of 10 years.
The declaration in this case averred that, by reason of her fall, plaintiff sustained "serious, dangerous, and permanent injuries to her spine and coccyx, and was then and there otherwise greatly bruised, wounded, and injured, and became and was sick, sore, lame, and disordered." There was no allegation that she had any difficulty with her breast which was aggravated by the injury. Upon her cross-examination defendant's counsel undertook to show that plaintiff was diseased before her fall upon the sidewalk; that she had been afflicted for years with an evil of the breast, which, at intervals, suppurated and discharged purulent matter, and which was discharging when she was first visited by physicians after her alleged injury. Evidence of expert witnesses was also introduced to show that this condition of the breast would be debilitating upon the system, and might produce septic or poisonous condition of the blood, and prevent or retard curing of the hurt to the spine caused by the fall. The plaintiff testified that she had trouble with her breast, caused by bruising it against the back of a chair; that it had healed up before this fall, and that the doctors said that there was nothing cancerous or poisonous about it, or anything that she need worry about, but that, after her fall, her breast broke out again. The plaintiff's counsel thereupon endeavored to show that this breaking out of the breast after the fall was caused by the fall, and introduced the testimony of experts tending to show it. Defendant met this by evidence of experts tending to show that the fall would not produce a mammary abscess. Defendant's counsel requested the court to instruct the jury that, under the declaration, they could not give plaintiff damages for strain or other injury to her breast, or the sore or abscess thereon. The court did not give the request as presented, but in that regard said:
This charge was erroneous. The plaintiff has not alleged in her declaration any strain or injury to her breast, or that she had trouble with or ailment of her breast that was aggravated by the fall upon the sidewalk. It is said by plaintiff's counsel that this matter of breast trouble was brought into the case by the defendant. This is true, but it was brought in to account for the continued trouble with her spine, and the abscess supposed to have formed in the lower bowels or rectum, and it was legitimately in the case for that purpose if the theory of the defendant was true; but it being brought into the case by the defendant for this purpose did not warrant the plaintiff to use it in aggravation of her damages, when there was no averment of any such claim of damages in her declaration. Shadock v. Plank Road Co., 79 Mich. 7, 44 N.W. 158. In reference to the expert evidence of Dr. Slenou, we find no particular objection to the question asked of him, but it was impossible, it appears, for him to answer the question without adding to the facts embodied in the question his own knowledge of the case. He substantially said that he was answering the question from his own knowledge of the case. This was not permissible, and the answer to the question should have been eliminated from the case. The record is quite blind as to whether it was or not. When a witness is speaking of his own professional knowledge of the condition of his patient, the opposing counsel has the opportunity to cross-examine him as to the details of that knowledge; but, when a hypothetical question is put to him, he should be confined to the facts as stated in such a question, the same as if he had never seen the patient. If he is permitted to inject facts into the question out of his own knowledge, and which he does without the knowledge of the court or jury, the answer is misleading, and a hindrance rather than an aid to justice. It cannot always be known when an expert witness does a thing of this kind, but when it appears, as it did here, from his own frank statement, the answer to the question should be excluded at once, and any further answer of the witness to hypothetical questions taken with caution, if not rejected altogether, unless it can be made to clearly appear that in such answer he acts upon the facts stated in such questions alone, and without recourse to facts within his knowledge not embraced in such questions. The testimony of Dr. Hodge, that the fall might aggravate the trouble in the breast, was admissible to refute the defendant's claim that it was a permanent ailment affecting her whole system, and in corroboration of plaintiff's testimony that it broke out because of said fall, but it could not be used to enhance the damages. The plaintiff, according to her own testimony, was not injured by, to her, a perceptible defect in the walk. The holes which she and others had noticed in the walk did not cause her fall. She stepped over a hole which was plainly to be seen, and stepped upon a plank which to her appeared to be all right. The plank upon which she stepped went down so that her foot slipped under the next plank, throwing her down. She testified that she went down the next morning, and found that board broken, but it seemed to be in its place. ...
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