Gagnier v. City of Fargo
| Decision Date | 29 April 1903 |
| Citation | 96 N.W. 841,12 N.D. 219 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass county; Charles A. Pollock, J.
Action by N.D. Gagnier against the city of Fargo. Judgment for plaintiff and defendant appeals.
Affirmed.
See 88 N.W. 1030.
Affirmed.
M. A Hildreth, for appellant.
The plaintiff was guilty of contributory negligence as a matter of law, and motion for a new trial should have been granted. Collins v. City of Janesville, 83 N.W. 695; 6 Mun Corp. Cases, 600; Gilmar v. Inhabitants of Deerfield, 15 Gray. (Mass.) 557; Bunker v. Town of Covington, 69 Ind. 35, 35 Am. Rep. 202.
The plaintiff claimed damages for physical injuries. The evidence introduced related solely to such injuries. The court erred in its instruction to the jury, that they should take into consideration "his physical pain and mental suffering arising from such injury, and which you may find that he is to continue to suffer from in the future, by reason of such injury."
The character of this instruction has already been condemned in Comaskey v. Northern Pacific Railway Co., 3 N.D 276, 55 N.W. 732.
M. A. Hildreth, for appellant on reargument.
The plaintiff was guilty of negligence as a matter of law. With knowledge of the defect in question, in open daylight, with the street before him and with nothing to prevent his taking the street or the other sidewalk, he attempts to ride across the point of danger without exercising, as we claim, ordinary care on his part, and such care as the law demands of him.
Durkin v. Troy, 61 Bar. 437, 4 L.Ed. 213; Town of Gosport v. Lydia E. Evans, 11 West Rep. 115; Neir v. Mo. Pac. Ry. Co., 4 West Rep. 597; Neal v. Town of Merriam, 40 S.E. 116; Devine v. City of Fond du Lac, 88 N.W. 913; Bohl v. City of Dell Rapids, 91 N.W. 315; Rust v. City of Goshun, 42 Ind. 339; Cooler v. City of Leavenworth, 27 Kan. 673; Schafeter v. City of Sandusky, 33 Ohio St. 245; Town of Gosport v. Evans, 112 Ind. 113; Goldstein v. C. M. & St. P. R. R. Co., 46 Wis. 404, 1 N.W. 37; Hausman v. City of Madison, 87 Wis. 187, 55 N.W. 167, 21 L. R. A. 263; Fisher v. Town of Franklin, 61 N.W. 80, 89 Wis. 42; Collins v. City of Janesville, 111 Wis. 348, 87 N.W. 241.
The instruction to the jury was prejudicial error.
McClengham v. Omaha, etc., 41 N.W. 350; McPherson v. Wiswell, 26 N.W. 916; Richmond & D. R. Co. v. Freeman, 11 So. Rep. 800; Wasson v. Palmer, 14 N.W. 171; Ballard v. State, 28 N.W. 271.
A misdirection of the judge may have influenced the verdict, and a new trial will be granted although the evidence may have warranted such verdict.
Wendel v. Hughes, 3 Wend. 418.
The verdict was a compromise. Plaintiff sued for $ 2,000; recovered in first trial, $ 300; in second, $ 400. When it appears that verdict was the result of a compromise, it should be set aside. Bigelow v. Garwitz, 40 St. Rep. 580.
David R. Pierce, for respondent.
The court did not err in instructing the jury "that prior knowledge of a defect in a sidewalk by one who is injured, is not necessary proof of contributory negligence." When the highway is out of order, it is not negligent to use it in as prudent a way as practicable.
Beach on Contributory Negligence, p. 257; City of Montgomery v. Wright, 72 Ala. 411; Huntington v. Breen, 77 Ind. 29; Osage City v. Brown, 27 Kan. 74; Dewire v. Bailey, 131 Mass. 169; Weston v. El. R. R. Co., 73 N.Y. 595; Dooley v. Meriden, 44 Conn. 117; Aurora v. Hellman, 90 Ill. 61; Reed v. Northfield, 13 Pick. 94; Evans v. City of Utica, 69 N.Y. 166.
Mere knowledge of defects or danger in the highway on the part of the person injured thereby, is not conclusive evidence of negligence contributory to the injury.
Beach on Contributory Negligence, p. 258; City of Erie v. Magill, 101 Penn. St. 616; Shaefler v. Sandusky, 33 Ohio St. 246; Centralia v. Krouse, 64 Ill. 19; Durkin v. Troy, 61 Barb. 437; Parkhill v. Brighton, 61 Iowa 103; Wilson v. Charlestown, 8 Allen 137; Corbett v. Leavenworth, 27 Kan. 673.
The court did not err in the following passage from the charge: "His physical pain and mental suffering arising from such injury, and which you may find he is certain to suffer from in the future by reason of such injury." No allegations of special damage is necessary to recover for mental suffering; it is inseparably connected with, and attends personal injuries. 5 Enc. Pl. & Pr. 758; Robinson v. Marino, 3 Wash. 434, 28 P. 752.
Damages that are the natural and necessary result of an injury need not be specially pleaded. They are implied by law and need not be so alleged. Curtis v. Rochester R. R., 18 N.Y. 534; Tyson v. Booth, 100 Mass. 258; Feeney v. Long Island R. R. Co., 116 N.Y. 375, 22 N.E. 402; Comasky v. N. P. Railway Co., 3 N.D. 276, 55 N.W. 732.
The plaintiff seeks to recover damages claimed to have been received by him while riding on the defendant's sidewalk on a bicycle, which damages are claimed to have been caused by the defendant's negligence in not keeping said sidewalk in proper condition. The complaint states the cause of action, after describing the defects in the sidewalk, in the following language: "That on the 18th day of October, 1889, the plaintiff was lawfully and rightfully riding over and upon said sidewalk on a bicycle, and that when he had arrived at a point in the same where said hole and loose bricks were located as aforesaid, and without fault or negligence on his part, his said bicycle was then and there overturned by a loose brick, and he was precipitated with great violence to the ground, whereby he received great injuries," etc. The defendant's answer was a general denial, with an allegation that the injury was occasioned by the contributory negligence of the plaintiff. The plaintiff recovered a verdict for $ 400. Defendant gave notice of intention to move for a new trial upon the following grounds: (1) Insufficiency of the evidence to justify the verdict; (2) that the verdict is against the law of the case; (3) errors of law occurring at the trial and duly excepted to by the defendant. A motion for a new trial was made, based upon a settled statement of the case and upon the grounds stated in the notice of intention. The motion for a new trial was denied, and this appeal from the judgment perfected.
This case was in this court on a former appeal, and is reported in 11 N.D. 73, 88 N.W. 1030. On that appeal this court ordered a new trial because of erroneous instructions given to the jury, and the rule was then followed that a municipality owes no greater duty to riders of bicycles, when allowed to ride on sidewalks, than to keep the same in proper condition for safe travel by pedestrians. On this appeal the assignments of error pertain to the instructions given to the jury solely. There is an assignment of error on the refusal of the court to grant a new trial. But the grounds thereof refer solely to the instructions claimed to be erroneous. There is no specification in the record at all as to the particulars wherein the evidence is insufficient to justify the verdict. No request for instructions by the defendant was refused. Hence consideration of the evidence to determine whether it sustains the verdict, or whether the plaintiff was guilty of contributory negligence, or assumed all risks with knowledge of the condition of the walk, is not permitted under the statute; and error can be claimed on the giving of instructions only, as none is specified or assigned. Section 5467, Rev. Codes 1899; Pickert v. Rugg, 1 N.D. 230, 46 N.W. 446; National Cash Register Co. v. Pfister, 5 S.D. 143, 58 N.W. 270. The first assignment on which appellant relies is in the giving of this instruction: "I charge you, gentlemen of the jury, that prior knowledge of a defect in a sidewalk by one who is injured is not necessarily proof of contributory negligence; and if you believe from the evidence in this case that the plaintiff had knowledge that the sidewalk was out of repair and even dangerous, yet because of that fact alone he would not, therefore, be bound to forego travel on such sidewalk." The objection to this instruction is stated by the appellant's attorney as follows: "Under the rule laid down in the case of Collins v. Janesville (Wis.) 107 Wis. 436, 83 N.W. 695, the instruction practically eliminated from the jury any consideration of the knowledge that the plaintiff possessed with reference to the point of injury, and consequently is destructive of that rule which required the plaintiff to exercise ordinary care to prevent an injury." Immediately preceding and next before the instruction quoted above the court gave this instruction: "You are to consider all the facts, including the condition of the sidewalk, the facts which were within the knowledge of the plaintiff in reference thereto, the character and nature of the defect in the walk which was the direct cause of the injury, the fact that the plaintiff was passing over the walk on a bicycle, and the manner in which he sought to pass, and then determine whether, under all the circumstances, he was in the exercise of such care and prudence as would have been used and...
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