Greenway v. Taylor County

• Decision Date: 27 October 1909
• Citation: 122 N.W. 943,144 Iowa 332
• Parties: H. M. GREENWAY v. TAYLOR COUNTY, IOWA, Appellant
• Court: Iowa Supreme Court

122 N.W. 943

144 Iowa 332

H. M. GREENWAY v. TAYLOR COUNTY, IOWA, Appellant

Supreme Court of Iowa, Des Moines

October 27, 1909

Appeal from Adams District Court.--HON. H. M. TOWNER, Judge.

ACTION for damages resulted in judgment as prayed. The defendant appeals.

Affirmed.

M. R Brant, County Attorney, W. E. Miller and Maxwell & Maxwell for appellant.

W. M Jackson and Meyerhoff & Gibson, for appellee.

OPINION

LADD, J.

While driving over what is known as the Dennis bridge in Taylor County, June 5, 1907, that structure collapsed, and plaintiff with his team was precipitated to the bed of the creek below, a distance of about sixteen feet. The verdict fixed the damages resulting from the injuries received at $ 5,000, and this is said to be excessive. Plaintiff fell some feet away from the team, and immediately undertook to let them loose and called for help. He did not suppose himself much hurt, and rode home in a neighbor's buggy. But he did not sleep well that night, and in the morning a physician was called. He was confined to the house for about two weeks, and during that time suffered a great deal of pain, especially in the side and back. He has been unable to perform manual labor since, though he has dealt in stock to some extent, as he did previous to the accident. While somewhat improved at the time of the trial, some eight months after the accident, his appetite was poor, he did not sleep well, and the condition of his knee was such as to interfere with locomotion, and pained him when riding in a buggy. Blood was discharged with urine for about a week after the injury, and one of the physicians who examined him testified that owing to the condition of his kidney, pus still appeared in his urine in varying quantities. He has suffered constant pain in the region of the kidneys, and is compelled to arise several times during the night to urinate. A large space on his side was sore and so continues. He has trouble with his stomach, and the knee grates, and sometimes he is able to use his knee with comparative freedom from pain, but when the knee joint grates, he is unable to bend it.

The physician who called testified that upon examination he found a great deal of tenderness over defendant's body, especially all the larger muscles; that on the right leg below the knee was a bruise; that on the left side below the occipital arch of the ribs he found a place which would give way readily, and concluded that the cartilage of the ribs was torn loose; that there was no lesion at the knee. The swelling of the knee has disappeared, but a squeaking or crepitus has become marked, and the physician thought that the breaking of the cartilage or breaking of the bone under the kneecap might account for this. An examination was made with the X-ray machine and both he and another physician observed what looked to be an enlargement of the spleen. They also observed that the upper part of the patella was downward farther on one side than on the other, and that the muscles were pushed upwards, and that the lower end of the femur was enlarged. The doctor first mentioned was of the opinion that plaintiff had suffered much pain, but was unable to say that the injuries would prove permanent. His temperature had continued from one and one-half to two degrees higher than normal. The second physician thought he observed a swelling below the kneecap which was very tender, the grating of the knee, and thought this would interfere with locomotion. Both considered the injury to the knee permanent, but thought it might be improved by an operation. The plaintiff was examined by still another physician at the Cottage Hospital in Creston. He testified that the stomach was moved over to the right more than it should be; that he had a kidney that was producing pus in the urine in varying amounts; that he attempted to wash out the stomach with a tube, but that the blood flowed so copiously that he concluded it wise to desist; that there was an exaggerated reflex in the right kidney; that the patella was inclined to stick forward, and then jump up again when pressed downward, and that there was a pronounced grating sound in the joint; that the X-ray picture indicated a displacement of the semilunar cartilage that ought to stay at one place; that it would float around and then stop; that a second examination confirmed what he had discovered at the first. He was of opinion that possibly a piece of fiber or cartilage had become detached in the knee joint so as to move from one place to another, and that if so, a surgical operation would relieve him. He thought the condition of the kidneys a menace, but that it might not be permanent. On the other hand, three physicians who examined the plaintiff in behalf of the county were able to discover no injury to the knee nor to his side, and upon examination of the urine found it to contain no pus. This is all the evidence bearing on plaintiff's condition, save some testimony that he appeared haggard, and was unable to perform manual labor. He was a farmer, and sometimes bought and sold stock. He had continued in the latter business, but had experienced some difficulty in getting about, making use of a cane, and often being compelled to get out of his buggy and walk owing to pain in his knee. The injury to the knee was permanent, though the doctors united in the opinion that its condition would be improved by an operation. All seemed to think that other conditions would be remedied by treatment. No claim was made for future pain, and the expenses for treatment and medicine have not exceeded $ 180. The jury might have found him to have suffered pain, and to have been injured as testified to by plaintiff's witnesses, and, having so found we are not inclined to interfere with the verdict.

I. The attending physician who treated plaintiff up to within three weeks prior to the trial was asked, "What do you say as to whether he has suffered, during the time since this injury, a great deal of pain?" Over objection the witness answered in the affirmative. This was equivalent to inquiring whether the injuries were of such a character as would be likely to cause pain, and was competent evidence. In McDonald v. Railway, 88 Iowa 345, evidence of the physicians that the injured person seemed to suffer pain was held admissible. In Rosevelt v. Railway (Super. Ct.) 13 N.Y.S. 598, affirmed in 133 N.Y. 537, (30 N.E. 1148) the court ruled that the physician might testify that the plaintiff suffered pain as did another court in C. B. & Q. Ry. v. Martin, 112 Ill. 16. In Holman v. Railway, 114 Mich. 208, (72 N.W. 202) the physician was allowed to give his opinion as to whether the injured person was still suffering pain, and this was approved. Some courts have approved of like testimony by non-experts. See Hall v. City of Austin, 73 Minn. 134, (75 N.W. 1121;) Werner v. Railway, 105 Wis. 300, (81 N.W. 416.) We think it entirely competent for the physician to say whether in his judgment the injuries of a person are such as would be likely to produce pain.

II. A witness named Johnson, after testifying that he had had a great deal of experience in the construction and repair of bridges, was asked, in substance, to explain the method by which he would examine a bridge to ascertain the condition of the timbers therein. Objection that this was not a matter for expert testimony was overruled, and rightly so. The information sought was not familiar knowledge to the ordinary juryman, and the evidence elicited was competent as bearing on the issues as to whether the county was negligent in not discovering and repairing the defective timber in the bridge before the accident.

III. After stating the issue and with precision precisely what plaintiff must prove in order to recover, and also the duty of the county with respect to keeping bridges in repair, the court said: "A failure on the part of any county to keep any of its bridges in repair constitutes negligence on its part for which it may be held liable for damages. Some observations bearing upon this issue, as particularly applicable to the case at bar, are here submitted for your consideration." The last sentence is criticized...