Mathews v. City of La Grande

• Decision Date: 02 June 1931
• Citation: 299 P. 999,136 Or. 426
• Parties: MATHEWS v. CITY OF LA GRANDE.
• Court: Oregon Supreme Court

299 P. 999

136 Or. 426

MATHEWS v. CITY OF LA GRANDE.

Supreme Court of Oregon

June 2, 1931

In Banc.

Appeal from Circuit Court, Union County; J. W. Knowles, Judge.

Action by N.E. Mathews against the City of La Grande. Judgment for plaintiff, and defendant appeals.

Affirmed.

Robert S. Eakin, City Atty., and George T. Cochran both of La Grande (Cochran & Eberhard, of La Grande, on the brief), for appellant.

R. J Green, of La Grande, (Green & Hess, of La Grande, on the brief), for respondent.

CAMPBELL J.

This is an action for personal injuries alleged to have been sustained by reason of a defective sidewalk. The complaint in paragraphs 1, 2, 3, and 4 thereof, alleges, in effect, the incorporation of the city, and that under its charter it has control of the streets and sidewalks therein, with power to improve and maintain the same in a state of repair, that North Fir street in said city is a principal public thoroughfare, and that said street and the sidewalk thereon is used in travel by the public generally, with the full knowledge and consent of the city. The complaint further alleges, in substance, that on the evening of May 7, 1930, and for several weeks prior thereto, a section of the sidewalk on North Fir street, in front of house No. 2201, had been and was broken, loose at both ends, insecurely braced underneath, which caused it to shake, tilt, and give way when any one walked over it, to such an extent as to be dangerous to the public using it; that defendant had actual, and constructive knowledge of the condition of said sidewalk, but negligently failed to put the same in a state of repair so as to render it safe for travel, or to close the same and prevent travel thereon; "That on the evening of May 7, 1930, plaintiff was lawfully using said sidewalk and was carefully carrying an ax in his right hand, and was passing along and over the same as a pedestrian and public traveller, and when he came upon said section of sidewalk above described, while exercising due care on his part, the said section tilted, oscillated, and gave way under his weight, causing his foot to be caught and fastened by said sidewalk, whereby he was violently thrown down upon said sidewalk, and in falling the ax which he was carrying came in contact with and cut off three of the fingers of his left hand;" that he has suffered, and will continue to suffer, pain and anguish, and has been permanently crippled, and rendered incapable of further manual labor; that he has been compelled to pay for medical and surgical attention $100 by reason of said accident and the resulting injury.

The complaint further alleges that plaintiff at the time of the accident was forty-three years old, of sober, industrious, and frugal habits, and earned $225 per month as a locomotive engineer; that the injury rendered him incapable of following his vocation or any other requiring physical labor; that he was damaged in the sum of $17,500, for which he asks judgment.

To this complaint defendant filed its answer admitting paragraphs 1, 2, 3 and 4, and denying the remainder, and for a further and separate answer alleged, in effect, that there is a board sidewalk of the construction usually adopted by cities for such sidewalks, at the place where the accident is alleged to have occurred; that said sidewalk was duly and regularly inspected by defendant and found safe; that defendant had no notice whatever of any alleged defect in said sidewalk; that said section of the sidewalk is situate between the plaintiff's residence and the business part of the city; that plaintiff had passed over it many times, and at the time of the alleged injury he well knew the construction and condition of the same, and, knowing its condition, he went upon said sidewalk without observing or looking where he was going, "failing to lift his feet high enough," and, without exercising ordinary care, stumbled and fell; that said acts and omissions contributed to, and were the proximate cause of, the injuries alleged in the complaint.

The affirmative matter alleged in the separate answer was denied in the reply. The cause was thereafter tried to a jury, which returned a verdict for plaintiff in the sum of $4,000 and judgment entered thereon. Defendant appeals.

The bill of exceptions shows thirteen assignments of error:

(1) In permitting counsel for plaintiff to ask the following questions:

"Q. What if anything did you pay or incur as to doctor bills? The reasonable charge for the service? A. I haven't paid but very little." "Q. What did you incur for the services? A. About $135."

Both these questions were objected to as irrelevant and immaterial. The above questions were material and relevant to the issue of the amount of plaintiff's medical bill. Dr. Kirby, a qualified physician and surgeon, being called as a witness for plaintiff, testified that $100 would be a reasonable charge for the surgical and medical services in connection with the plaintiff's injury.

"The rule is that a plaintiff in a case involving personal injuries can recover, as a part of his damages, his reasonable expenses for medicines and medical treatment, but there must be some evidence that the charges are reasonable." Tuohy v. Columbia Steel Co., 61 Or. 527, 122 P. 36, 38.

(2) In permitting counsel to ask over objection, Ray Johnson, a witness for the plaintiff:

"Q. Now just state what the condition of the sidewalk was there generally as to being level or wavy or what the condition was. A. The condition of the sidewalk, all of the board sidewalk there is in a very poor condition, and there is, of course, some stringers spliced, I know, and boards nailed on them, and when I lived there I tried to keep it in condition.

"Q. And for how long a period of time? A. Well, I couldn't say just how long a time, but there has always been loose boards and the sidewalk has been uneven since I have been traveling on it."

The witness had been testifying about loose boards in the sidewalk in the immediate vicinity of the place where plaintiff claimed the accident happened just before he was asked these questions, and the answers, when considered in connection with his other testimony, were not objectionable.

Defendant also takes exception to the ruling of the court in permitting plaintiff's counsel to ask the witness, Robert Wilde, a witness for the plaintiff, "And for how long a period of time?" This witness testified about the section of the sidewalk that exists there at the corner of U and North Fir, opposite house No. 2201; that it was very uneven, and that there were loose boards; that he saw boards turned over and out of place. He was then asked the above question, to which he answered, "Well, I could not say just how long a time, but there has always been loose boards and the sidewalk has been uneven since I have been traveling over it."

Counsel for defendant also took an exception to the court's ruling in permitting counsel for plaintiff to ask Robert Bradford, a witness for the plaintiff, "Just state whether it was frequently or not, in this condition, where the boards were loose from the stringers." This witness testified that he resided in house No. 2201 for three or four years; that the sidewalk was just an old board walk. It had been there for a number of years, and he did not think it ever had been rebuilt entirely new. It had been repaired from time to time. Sometimes they repaired it fairly good, and then in a little while, a number of weeks, it would get in a dilapidated condition, and run down. He did not know about the stringers. The boards were frequently loose. They were old and decayed, and would get loose at times. He was asked the above question and answered, "Yes, I would say frequently it was--there was loose boards."

All of the above questions were in regard to the particular condition of the sidewalk which plaintiff claimed was the proximate cause of his injury, and were not objectionable.

The several witnesses may not have been able to testify as to the length of time the particular board, which caused plaintiff's accident, was loose. Yet their testimony, if believed by the jury, was competent to charge the city with knowledge of the fact that there were loose boards in the immediate vicinity of the accident for a considerable length of time prior to the injury. Village of Shelby v. Clagget, 46 Ohio St. 549, 22 N.E. 407, 5 L. R. A. 607; 2 Sherman and Redfield on Negligence, § 369; Cartano v. Athena, 90 Or. 586, 176 P. 789.

Counsel for defendant takes exception to the ruling of the court in permitting plaintiff, on cross-examination, to ask George E. Walker, a witness called on behalf of the defendant, "Did you notice that it was uneven and not level?" This witness testified on direct examination that he had examined the sidewalk in question, and that it was in good condition; that he saw no loose boards. Counsel for plaintiff had undoubtedly the right to cross-examine him as to any defects that might exist in the sidewalk, at least for the purpose of testing the extent of the witness's observation.

It will be observed that the complaint alleges a number of defects in the sidewalk where the accident occurred. In his testimony plaintiff claimed, as the chief cause of his accident, that a board was loose, and, when he stepped on one end, the other end...