Larson v. City of Grand Forks

• Decision Date: 12 May 1884
• Citation: 19 N.W. 414,3 Dak. 307
• Parties: Larson v. City of Grand Forks.
• Court: South Dakota Supreme Court

19 N.W. 414

3 Dak. 307

Larson

v.City of Grand Forks.

Supreme Court of the Territory of Dakota.

Filed May 12, 1884.

Noyes & Woodward, for respondent. W. L. Wilder, for appellant.

EDGERTON, C. J.

The respondent brought an action in the district court for Grand Forks county to recover damages for injury received through the alleged negligence of the defendant. Upon the trial of the issue the jury returned a verdict in favor of the plaintiff and respondent for the sum of $1,300 damages. This verdict was set aside by the district court, and a new trial granted. Upon the second trial the jury assessed the damage in favor of the plaintiff in the sum of $1,500. A motion was made by the defendant for a new trial, which was denied, and an appeal taken to this court.

There are three assignments of error: First, that the damages were so excessive that they bear the ear-marks of passion or prejudice on the part of the jury; second, that the evidence is insufficient to justify the verdict; third, the court erred in overruling defendant's motion, at close of plaintiff's case, to direct the jury to bring in a verdict for defendant, because the facts stated in the complaint were not sufficient to constitute a cause of action; and further erred in refusing, at defendant's request, to charge the jury “that the city of Grand Forks is not liable.”

In reference to the first and second assignments of error, the record discloses that the plaintiff, a laboring man, had his leg broken by the fall of an awning overhanging the sidewalk, was confined to his bed, in consequence of the same, for about six weeks, and then for another six weeks was not able to walk about without the use of crutches; that he was obliged to pay his physician and nurses about $300. There was also testimony offered, and received, tending to show that the plaintiff had not, since the accident, been able to perform labor as before, and that the broken leg was shorter than the other, in consequence of the fracture resulting in a permanent injury. See Abstract, 14-18. “The verdict should not be disburbed unless it is clear that the damages awarded are materially greater than the evidence will justify.” Treanor v. Donahoe, 9 Cush. 228;Baker v. Briggs, 8 Pick. 126;Bass v. C. & N. W. R. Co. 39 Wis. 640.

The only remaining question is, did the court err in the charge to the jury?

The defendant submitted the following requests, all of which were given by the court, except the first: “(1) That the city of Grand Forks is not liable. (2) That, if the city be liable at all, it can be only after actual or implied notice, brought home to the corporation, and failure to repair or remove the same thereafter; otherwise the jury must find for defendant. (3) That, to charge the city with presumptive notice of the dangerous condition of this porch, it must have been so dangerous, and so apparent to every passer-by, that an ordinarily careful person must have seen and avoided the same. Mere knowledge on the part of a few citizens does not constitute implied notice. (4) That the plaintiff must come into this court with clean hands, and if he, by any act, caused, or in any manner contributed to hasten, or was the means of hastening, the fall of this porch, then the jury must find for the defendant. (5) That the act of reaching up and catching hold of one of the supports of this porch, was, if believed by the jury, an act of contributory negligence. (6) If you find for the plaintiff, he is entitled only to actual...