Langworthy v. Township of Green

• Decision Date: 30 October 1891
• Citation: Langworthy v. Township of Green, 88 Mich. 207, 50 N. W. 130 (Mich. 1891)
• Court: Michigan Supreme Court
• Parties: LANGWORTHY v. TOWNSHIP OF GREEN.

50 N.W. 130

88 Mich. 207

LANGWORTHY v. TOWNSHIP OF GREEN.

Supreme Court of Michigan

October 30, 1891

Error to circuit court, Mecosta county; JOHN H. PALMER, Judge.

Action by Willard E. Langworthy against the township of Green to recover for personal injuires. Judgment for plaintiff. Defendant appeals. Reversed.

The testimony of a physician that the disability resulting from the fractured leg would probably not become any less considering the time that had elapsed since the accident, and that, if plaintiff had any rheumatic trouble, it would probably settle in that leg, was admissible as showing the probable effects of an injury of that character.

M. Brown and J. Byron Judkins for appellant.

Dumon & Cogger, for appellee.

MCGRATH, J.

Plaintiff was thrown from his wagon while driving along a highway in the defendant township, between 9 and 10 o'clock at night, July 23, 1888. The highway had been in use upwards of 15 years; had been turnpiked so as to form a road-bed from 14 to 16 feet wide, and was used generally. A log, from five to seven inches in thickness, lay near the center of the road-bed, running parallel with the line of the road. The southerly end of the log was imbedded in the earth, but from two to five feet of the north end was exposed to view. It had been allowed to remain in that position for from one and one-half to two years before plaintiff was injured. Three witnesses testified that the north end of the log rested upon or near the ground, and 9 or 10 witnesses testified that the top of the log at the north end was from 11 to 18 inches above the ground. Two witnesses testified that they had bunted against the log several times while driving along the highway, and one that his sleigh had caught upon it in attempting to drive over it. The most of the travel was upon the west side of the log, but the road was in good condition on the east side, and was used. Plaintiff claims that while driving south, on the night in question, at a moderate rate of speed, with two other persons in the wagon and on the seat with him, he sitting upon the extreme right of the seat, his horses shied, one of the wheels struck the log, and he was thrown out of the wagon, and dragged some six or eight rods, breaking his leg, otherwise injuring him, and that his injury to the leg was a permanent one. He says that he knew that the log was in the road, but did not realize that it was at that point, until his horses shied, when he saw the log, but it was too late to avert the collision. The record contains 54 assignments of error, all of which are discussed in appellant's brief. The first 20 relate to the admission or rejection of testimony.

1. Plaintiff was allowed, under objection, to give the result of a measurement, made four weeks after the accident, of the size and height of the log from the roadbed. Testimony of this character is incompetent in the absence of testimony that the conditions are the same, and there is a likelihood that the situation may be changed; but here the testimony related to a log firmly imbedded in the earth, and accompanying the testimony objected to was evidence negativing the probability of a change of situation.

2. Plaintiff testified that he was unable to do any work until the next spring after he was injured. He was then asked the following question: "Question. Did you have to hire a man to do your work during the time you were laid up from the injury?" Defendant objected to the testimony "as incompetent; that plaintiff could not prove the value of his time that way." The objection was overruled, and defendant excepted. The witness answered that "it was worth about a dollar and a half a day." The question asked was a proper one. The objection made was premature, and the witness answered, not the question asked, but the suggestion of defendant's counsel.

3. The attending physician was asked his opinion as to what effect the injury would have upon plaintiff as he grew older, and whether or not the natural tendency of such a fracture would be to increase his disability as he gets older. The witness replied: "I am inclined to think that after this length of time his limb will not improve. They usually improve for a year or two, but after this length of time probably the limb will not improve." "The probability is that if he has rheumatic trouble, or any trouble, it will be centered in this injured limb." The questions were not clear, but the testimony given was admissible. Plaintiff was entitled to show the probable effects of an injury of this character, and it could only be shown by the opinion of a competent physician.

4. Plaintiff, in answer to questions, testified that he had a conversation with one Brown at his house in November after the accident; that he did not state to him that his horses scared at a calf; that he did say to him that he claimed damages against the township; and he was then asked what claim he made to Brown. This was objected to as no part of the cross-examination, and because immaterial. Objection sustained, and exception by defendant. "Question. Didn't you tell him that you got too far to the right side of the road, and a calf jumped up by a stump on the same side that you were sitting, and scared the team, and they sheered to the left, or words to that effect? Answer. No, sir; I didn't. Q. And threw you out? A. No, sir; I never told him any such a word. Q. Didn't you tell him that they drew you by the lines between a stump and the hind wheel of your wagon, and your foot caught in the wheel? A. No, sir; I never told him such a word. Q. And isn't that the theory that you gave to him of the injury at that time? A. No, sir. Q. Didn't you, in the spring, some time in May or June, when he was down in your region there about your place, say that you had a notion to sue the doctor that set your leg for the injury, claiming that he didn't do his work right? A. No, sir; I don't think I told him any such thing. I know I didn't. Q. Do you swear you didn't? A. Yes, sir; I swear I didn't tell him so. Q. You swear positively? A. Yes, sir. Q. Didn't you say to him that the doctor paid no more attention to you than he would to a nigger or a dog? A. No, sir; I never said such a word to no man. I had a little conversation." The question objected to was a proper one. If he made any claim to the highway commissioner different from that now made, or if he gave any other history of the accident, or accounted for it in any other way, it was proper upon cross-examination to draw it out; but defendant's counsel was allowed afterwards, as it will appear by the foregoing, to go into that matter, and the error was without prejudice.

5. Two witnesses (both farmers) who had worked with plaintiff on the farm in the hay-field and at other kinds of labor, both before and after the injury, were asked what they could say as to plaintiff's ability to do as good a day's work since he got hurt as before. This was competent. These men had had opportunities for observation and to make comparisons. They saw him at work, witnessed his movements, and observed the volume of work done. The question involved no matter exclusively within the domain of medical science. Indeed, the testimony of these men, as to the matters to which it related, was of a higher and better quality than that of a physician.

6. Plaintiff, in reply to a question, stated: "I was driving carefully as a man could. I had been driving on a walk all the way up there. My horses had walked all the way to the water-hole,-that is, the creek south of Mr. Davis' about 80 rods, or a little better. I got out and watered them there. Went on about 30 or 40 rods, and I met Mr. Reed. I stopped and talked...