Gilson v. City of Cadillac

• Decision Date: 14 July 1903
• Citation: 95 N.W. 1084,134 Mich. 189
• Court: Michigan Supreme Court
• Parties: GILSON v. CITY OF CADILLAC.

95 N.W. 1084

134 Mich. 189

GILSON v. CITY OF CADILLAC.

Supreme Court of Michigan

July 14, 1903

Error to Circuit Court, Wexford County; Clyde C. Chittenden, Judge.

Action by Lillie Gilson against the city of Cadillac. Judgment for plaintiff, and defendant brings error. Affirmed on plaintiff's consenting to remit a portion of the judgment.

Fred S. Lamb (E. Eugene Haskins, of counsel), for appellant.

Sawyer & Bishop, for appellee.

MOORE J.

This action was brought by the plaintiff, a married woman, to recover for personal injuries alleged to have been received by her on the 15th day of September, 1901, by reason of a defective sidewalk in the city of Cadillac. The case was tried by a jury, who gave her a substantial verdict. The case is brought here by writ of error.

There are many assignments or error, all of which have had our attention, but we deem it unnecessary to discuss all of them. Complaint is made of that portion of the general charge reading as follows: 'The court instructs you further that the defendant corporation, the city of Cadillac, is bound by law to use all reasonable care and caution and supervision to keep its streets and sidewalks in safe condition for travel in the ordinary modes of traveling by night as well as by day, and if it fails to do so it is liable for injuries sustained in consequence of said failure, providing the party injured is herself exercising reasonable care and caution.' This is not a correct statement of the law, but the judge gave other instructions in relation to that feature of the case. Among other things, he said 'If the jury believe from the evidence that the plaintiff was injured by reason of the defendant's negligence in failing to keep its sidewalks in reasonably good repair, or negligently allowing the same to remain in an unsafe condition as explained in these instructions, and without fault on her part that she has sustained damage, then the jury have a right to find for her.' 'The defendant requests the court to charge, and I do charge you, that the law only imposes upon the city the duty to keep its sidewalks in a condition reasonably safe for public travel. The city is not an insurer against accident, nor is it required to make its walks absolutely safe from accident, and the fact of an injury to a person passing upon the walk is not in and of itself evidence that the walk was not reasonably safe and fit for public travel.' We do not think the jury could have labored under any misapprehension as to the duty of the city.

Complaint is made of the following portion of the charge: 'I further instruct you that, in estimating the compensatory damages in cases of this character, all the consequences of the injury, future as well as past, are to be taken into consideration, including the bodily pain which is shown by the proofs to be reasonably certain to have naturally resulted from the injury.' It is said the labor of the plaintiff belongs to her husband, that inability to labor was a consequence of the injury, and for this the plaintiff was not entitled to recover damages. To understand the effect of the charge, more than a few isolated sentences should be read. Immediately following the excerpt given above, and as part thereof, the court said: 'The injured party, when entitled to recover, should be awarded compensation for all the injuries, past and prospective. These are intended to include and embrace indemnity for actual nursing and medical expenses which were paid by the plaintiff. The elements of damages which the jury are entitled to take into account consist of all the effects of the injury complained of, consisting of personal inconvenience, the sickness which the plaintiff has endured, all bodily and mental suffering, the disfigurement or permanent annoyance which is liable to be caused by the deformity resulting from the injury; and, in considering what would be a just sum in compensation for the suffering from the injury, the jury are not only at liberty to consider the bodily pain, but the mental suffering, anxiety, and suspense, which may be treated as elements of the injury, for which damages, by way of compensation, should be allowed; and all these last-mentioned elements of damage are, in their very nature, not susceptible of any precise or exact computation. The determination of the amount is committed to the judgment and good sense of the jury, and, if you find for the plaintiff, such sum should be awarded as will fairly and fully compensate her for all damages which she has sustained, consisting of the elements referred to, and not exceeding in amount the sum claimed in the declaration.'

The judge also charged the jury, after instructing them as to the circumstances which would entitle the plaintiff to recover 'then the jury have a right to find for her in such an amount of damage as they believe, from the evidence, will...