Mccrorey v. Thomas

• Decision Date: 11 March 1909
• Parties: McCROREY . v. THOMAS.
• Court: Virginia Supreme Court

63 S.E. 1011

109 Va. 373

McCROREY .

v.THOMAS.

Supreme Court of Appeals of Virginia.

March 11, 1909.

1. Exceptions, Bill of (§ 26^*)—Construction.

A statement in a bill of exceptions that a physician testifying for plaintiff referred to the case of a man with a depressed fracture of the skull, and, on stating that the injury was occasioned by a blow on the head, he was asked how, and answered that he was struck with a piece of iron rod, and that defendant's counsel objected to this last question, and it was overruled, does not show that it was objected that the witness had no right to give the result of an isolated case, which came under his observation.

[Ed. Note.—For other cases, see Exceptions. Bill of, Dec. Dig. § 26.*]

2. Appeal and Error (§ 232*)—Objection Not Made Below—Admissibility of Evidence.

A party will not be permitted to make one objection to evidence in the trial court and another in the appellate court.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1351, 1368, 1430, 1431; Dec. Dig. § 232;* Trial, Cent. Dig. §§ 211-222, 691-093.]

3. Trial (§ 191*)—Falling Awning—Action for Injuries — Instructions—Assumption of Fact.

In an action for personal injuries caused by being struck by an awning in front of defendant's store, which fell on plaintiff on a windy day, the court charged that, if the wind was "dangerously high." it was defendant's duty to raise the awning, if he knew, or could have known by the exercise of ordinary care, that such a wind was blowing, and the giving of such instruction and the refusing of an instruction amending the same by leaving out the word "dangerously" was assigned as error, as assuming that the wind was "dangerously high." Held, that neither the instruction as given, nor as rejected, assumed that the wind was of the character described in either.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 42CM131, 435; Dec. Dig. § 191.*]

4. Appeal and Error (§ 1033*)—Harmless Error—Instructions.

The instruction given required a higher wind to call on defendant to raise the awning than the charge requested, and was therefore more favorable to defendant, and, if error, harmless.

[Ed. Note.—For other cases, see Appeal and Error. Cent. Dig. §§ 4056-4058; Dec. Dig. § 1033.*]

5. Municipal Corporations (§ 808*)—Awning Over Sidewalk—Care Required of Storekeeper.

In erecting and maintaining an awning over a sidewalk, a storekeeper is bound to exercise ordinary care to see that it is so secured and managed as to withstand not only ordinary vicissitudes of the weather, but the force of winds liable to occur in the locality.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1688-1694; Dec. Dig. § 808.*]

6. Master and Servant (§ 324*)—Awning Over Sidewalk—Injury to Pedestrian-Persons Liable.

Whether an awning over a sidewalk, which fell and injured a pedestrian, was erected under the supervision of the owner or an independent contractor, is wholly immaterial as to the liability of the owner, unless injury was caused be fore the contractor completed the work and turned it over to the owner.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 1265; Dec. Dig. § 324.*]

7. Negligence (§ 55*)—Persons Liable—Independent Contractor.

An independent contractor is not liable for injury to the person or property of one not a party to the contract, occurring after he has completed and turned it over to the owner or employer and it has been accepted by him.

[Ed. Note.—For other cases, see Negligence, Cent. Dig. § 68; Dec. Dig. § 55.*]

8. Negligence (§ 121*)—Presumption from Injury.

While negligence is never presumed from the mere fact of injury, yet where defendant owes to plaintiff a duty to use care, and the thing causing the injury was under the management of defendant or his employes, and the accident is such as ordinarily does not occur when proper care is taken, a presumption of negligence is warranted.

[Ed. Note.—For other cases, see Negligence, Cent. Dig. § 218; Dec. Dig. § 121.*]

9. Municipal Corporations (§ 817*)—Falling Awning—Injury to Pedestrian—Presumption of Negligence — Burden of Proof.

Where a pedestrian on a highway is injured by the fall of an awning attached to a building, and it is not claimed to be a nuisance, the injury warrants the presumption of negligence, which puts the burden on defendant to disprove it by evidence of employment of proper and reasonable care.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1725; Dec. Dig. § 817.*]

10. Appeal and Error (§ 1004*)—Excessive Damages—Questions for Jury.

Unless the damages allowed for a negligent injury are so large as to indicate that the jury was actuated by partiality or prejudice, the verdict cannot be set aside as excessive.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3944-3947; Dec. Dig. § 1004.*]

Error to Law and Chancery Court of City of Norfolk.

Action by Beatrice Thomas, by her next friend, against J. G. McCrorey. There was a judgment for plaintiff, and defendant brings error. Affirmed.

M. R. Peterson and T. H. Willcox, for plaintiff in error.

Starke, Venable & Starke, for defendant in error.

BUCHANAN, J. There was a verdict and judgment in the trial court in favor of Beatrice Thomas, an infant, who sued by her next friend, against J. G. McCrorey, for damages for injuries caused by the fall of an awning. To that judgment this writ of error was awarded.

It appears that on a windy day in January, 1907, the plaintiff, who was 12 years old, was walking along the sidewalk on Main street in the city of Norfolk, when an adjustable awning in front of and attached to the defendant's store fell upon her, producing, among other injuries, a depressed fracture of the skull.

There was some question at the trial as to whether or not an operation would have relieved or prevented some of the injurious consequences which it was testified had or might probably result from the fracture.

Dr. McCormick, one of the plaintiff's witnesses, was asked the following questions, as appears from bill of exceptions No. 1:

"Q. Is there danger attending these operations? A. I think so.

"Q. Now, doctor, if the operation goes through, and the child lives after the operation, can you say with any degree of certainty that either or both of the conditions which will reasonably exist will be cured? A. I have not had wide experience or observation on the subject, but I have seen a man with a depressed fracture of the skull, who suffered from Jacksonian epilepsy and from epileptic symptoms. The depression was removed, and he ceased having epileptic attacks, but the paralysis remained the same.

"Q. That has come under your observation? A. Tes, sir.

"Q. How was that injury occasioned? A. By a blow on the head.

"Q. How? A. Struck with a piece of iron rod over the center.

"To which last question the defendant, by counsel, objected, which objection the court overruled." The admission of this evidence is assigned as error.

The objection made to it here is that, while the witness might give his opinion as to what generally might be expected to follow from such a blow, he had no right to give the results in an isolated case which came under the witness' observation.

Conceding that this is true, no such objection was made. The only thing objected to, so far as the bill of exceptions shows, was how the blow in the particular instance testified to was caused. The answer to that question could not have prejudiced the defendant.

Another error assigned is the action of the court in permitting Dr. Graves, another witness for the plaintiff, to answer the following question: "Doctor, from an examination and knowledge of the facts concerning the injury to this particular child, will you state to the jury how, in your opinion, her future will be affected by this injury with reasonable certainty."

The bill of exceptions No. 2, upon which this assignment of error is based, does not show what the objection to the question was; but, when the bill of exceptions containing all the evidence of Dr. Graves is examined, it appears that the objection made to the question was that it ought to be confined "to the facts within his (the witness') knowledge, and not what the girl has told him." Upon the statement of the plaintiff's counsel, in reply to that objection, that the question related to what the witness knew, the court overruled the objection and permitted the question to be answered.

If there was the further objection to the question that it was too broad and authorized the witness to enter into the realm of speculation as to the effects of the blow upon the future life of the plaintiff, as is now claimed in the petition, that objection ought to have been made at that time. A party will not be permitted to make one objection to evidence in the trial court and another in the appellate court. Warren v. Warren, 93 Va. 73-76, 24 S. E. 913.

The action of the court in giving instruction No. 1, offered by the plaintiff, and in refusing to give that instruction as amended by the defendant in lieu of it, is assigned as error.

Three objections are made to the instruction given, viz.:

"(1) It imposed upon the defendant an absolute duty to use the safer of two ways, either of which, as a matter of fact, may have been reasonably safe in the judgment of a man of ordinary care and prudence situated under the same or similar circumstances.

"(2) It charged that as a matter of law It was culpable negligence in the petitioner, in the choice between alternatives, either of which may have been safe in the judgment of a man of ordinary prudence under the circumstances, not to have used the safer way, and thus took from the jury the very question which, under the settled principles of the common law, is peculiarly and necessarily referred to the determination of the jury; that is to say, whether the conduct of the defendant was conformable with the requirements of ordinary care and prudence under the circumstances of ...