McConnell v. City of Osage

• Citation: 80 Iowa 293,45 N.W. 550
• Parties: MCCONNELL v. CITY OF OSAGE.
• Decision Date: 27 May 1890
• Court: United States State Supreme Court of Iowa

80 Iowa 293

45 N.W. 550

MCCONNELL

v.CITY OF OSAGE.

Supreme Court of Iowa.

May 27, 1890.

Appeal from district court, Mitchell county; J. B. CLELAND, Judge.

Action for personal injuries sustained by falling on a sidewalk in the defendant city. There was a judgment for defendant, and the plaintiff appealed.F. F. Coffin, G. E. Marsh, and Cummins & Wright, for appellant.

W. L. Eaton, for appellee.

GRANGER, J.

1. The trial court limited the number of witnesses for each side to six on the question of the general condition of the walk where the plaintiff was injured, and appellant complains of such action of the court. So far as we can judge, the order was made near the commencement of the trial, and without objection by either party. Later plaintiff desired to introduce additional witnesses, which the court refused. From the state of the record, it does not appear that the question is properly before us for review, for we find no exceptions taken to the action of the court. If the order was made without objection, we must assume that the parties assented thereto; and of such action they could not afterwards complain.

2. The testimony tends to show that the sidewalk on which the injury occurred was in a rotted condition, so that the sills would not retain the nails by which the boards were fastened to them. The sidewalk was built in 1872, and the accident happened in 1884. The walk was built by the defendant city. The law requires it to use reasonable diligence in keeping its walks in suitable repair. As bearing on the question of defendant's negligence, the plaintiff offered certain witnesses, whose competency is not questioned, to testify as to the length of time the kind of lumber of which the walk was constructed would last. Under the objections of the defendant, it was excluded, and, as we understand, on the theory that it was not a proper subject for expert testimony. We think the testimony should have been admitted. As was said in Ferguson v. Davis Co., 57 Iowa, 601, 10 N. W. Rep. 906, we may say in this case: “Conceding that the knowledge is such as may be acquired by observation, yet the matter is one which all persons do not have the inclination nor the opportunity to observe;” and, while the judgments of persons generally might not differ to any great extent on such a subject, we believe that persons who have not given the matter particularthought or observation would in their judgments make years of difference. Much would depend on their business, and their opportunities for such observation. The business of many men would operate to almost entirely exclude them from such observations, and there would be nothing to particularly call their attention to the subject. The case of Muldowney v. Railway Co., 36 Iowa, 462, cited by appellee, is by no means against this view. It is there said: “It is often very difficult to determine in regard to what particular matters and points witnesses may give testimony by way of opinion. It is doubtful whether all the cases can be harmonized, or brought within any general rule or principle.” It seems to us quite clear that the judgment of men whose business and observations give them accurate information on the question of durability of material in bridges or walks would be of great value to a jury in properly determining such a question. No question as to the competency of the witnesses, or the materiality of the testimony offered, is made in the case. Our holding is that the jury in such cases may be aided by the testimony of competent witnesses. It is doubtful if for this error alone we should have reversed the case; there being so much other evidence as to the condition of the walk.

3. The plaintiff was injured by tripping on a loose board in the walk; and, with a view to show that the city did or should have known of the condition of the walk where the injury occurred, she offered to prove a defective condition of the walk the entire length of the block. The offer was refused. In this the court erred. The point is clearly controlled by the case of Armstrong v. Town of Ackley, 71 Iowa, 76, 32 N. W. Rep. 180. Appellee thinks the point should be controlled by Ruggles v. Town of Nevada, 63 Iowa, 185, 18 N. W. Rep. 866. The offer in this case was to prove a continuous condition of the walk from the place of injury. In the Ruggles Case the inquiry was not as to the continuous condition of the walk, but it was as to another place, “near there” or “in that locality.” The accident in that case was also caused by a loose board, and a defect at some other place, near there, would not be as likely to show the particular defect complained of as would the fact that the defect complained of was a part of one continuous defect; and that is a distinguishing feature of the cases

4. There was testimony tending to show that, because of plaintiff's injuries, her spine and nervous system were affected; and it was claimed that her injuries were permanent. One Dr. Russell, who had attended her, after testifying as to her condition, was asked this question: “Where there is an injury to the nervous system, in shock or strain to the spinal column, of such a character that it continues for a period of two and a half years, occasioned by a fall, what are the probabilities or chances, in your opinion, as to the recovery of a person, or not?” An objection to the question was sustained, and, on appeal, appellee does not question the admissibility of such proof; but its contention is that the doctor had before given the answer sought by the question, and, inferentially, that there could have been no prejudicial error in the ruling. In this we think appellee is correct, and we have only given the point this notice to avoid a misapprehension on another trial.

5. Several lady witnesses were, against the objections of the plaintiff, permitted to testify as to statements made to them by plaintiff, many years before the accident, as to her health. It is urged that such statements, if made, are too remote, and hence incompetent. The plaintiff, as affecting the question of the damage she had sustained from the injury, had given testimony as to her health and ability to perform labor at least as far back as 1870, showing that she was a strong, robust woman. In view of this fact, we think the proof of statements made by her not earlier than 1866 or 1867, and later, were not too remote to be considered as affecting the truth of her statements.

6. Dr. S. B. Chase, being a witness for the defendant, testified that he treated the plaintiff professionally in the years 1866, 1867, and 1871. In doing so, against the objections of the plaintiff, he related confidential communications made to him, and necessary for her proper treatment. Code, § 3643, provides: “No practicing attorney, counselor, physician, surgeon, minister of the gospel, or priest of any denomination shall be allowed, in giving testimony, to disclose any confidential communication properly intrusted to him in his professional capacity, and necessary and proper to enable him to discharge the functions of his office according to the usual course of practice or discipline. Such prohibition shall not apply to cases where the party in whose favor the same are made waives the rights conferred.” The only theory upon which the action of the court is sought to be sustained is that the plaintiff waived the provisions of the statute in her favor. It will be observed, from the closing sentence of the section, that the party in whose favor the prohibition is may waive it. The facts urged as constituting the waiver are as follows: The plaintiff was a witness in her own behalf, and testified that she had worked on the farm, and traveled and sold books and sewing-machines; that, since the birth of her children, her health had been good; that she had done heavy work indoors and outdoors; and that she had been sick but little. It may be said that her testimony, if true, showed her to be a remarkably robust and vigorous woman. She also stated that Dr. Chase had been her attending physician at times. Counsel for appellee states his proposition in support of a waiver as follows: “Having assumed to state what her physical condition had been for...