McLean v. City of Lewiston

• Decision Date: 05 June 1902
• Parties: McLEAN v. CITY OF LEWISTON
• Court: Idaho Supreme Court

69 P. 478

8 Idaho 472

McLEAN v. CITY OF LEWISTON

Supreme Court of Idaho

June 5, 1902

STREETS AND SIDEWALKS-CITY CHARTER.-That part of the charter of the city of Lewiston, which provides that said city shall be liable to anyone for any loss or injury, to person or property, growing out of any casualty or accident happening to any such person or property, on account of any "street or public ground therein," is broad enough to, and does, include the sidewalks on the streets.

COMPLAINT-SPECIFIC ALLEGATIONS.-Only ultimate facts need be pleaded, and allegations of complaint must be made sufficiently specific to enable defendant to make a full and complete defense to the action.

LEADING AND SUGGESTIVE QUESTIONS.-Permitting leading questions to one's own witness is largely in the discretion of the court, and the action of the court thereon will not be disturbed unless an abuse of discretion is shown. There are many exceptions to the general rule that leading questions are not permitted.

HYPOTHETICAL QUESTION.-Hypothetical questions must be based on the facts admitted or established by the evidence, or both.

ALLEGATIONS OF PERMANENT INJURY.-Allegations of great bodily injury, and that by reason thereof plaintiff was rendered an invalid, and a cripple, is a sufficient allegation of permanent injury.

EXPERT WITNESSES-IMPEACHING WITNESSES-CROSS-EXAMINATION.-Great latitude is allowed in the cross-examination of expert and impeaching witnesses.

DAMAGES FOR PERSONAL INJURIES.-The law does not fix any precise rule of damages in actions for personal torts, but leaves their assessment to the unbiased judgment of the jury.

EXCESSIVE DAMAGES.-In such actions, the verdict will not be disturbed on the ground of excessive damage, unless the amount of damages is so disproportionate to the injury proved as to justify the conclusion that the verdict is not the result of the cool dispassionate consideration of the jury.

(Syllabus by the court.)

APPEAL from District Court, Nez Perces County.

Judgment affirmed, with costs in favor of respondents.

McFarland & McFarland, for Appellant.

The demurrer to the complaint should have been sustained because An action for damages by a private individual against a municipal corporation for an injury sustained by a defect in a highway cannot be maintained, in the absence of a statute expressly declaring such liability. (Arkadelphia v Windham, 49 Ark. 139, 4 Am. St. Rep. 32, 4 S.W. 450; Ft. Smith v. York, 52 Ark. 84, 12 S.W. 157; Winbigler v. Los Angeles, 45 Cal. 36; Arnold v San Jose, 81 Cal. 618, 22 P. 877; Chidsey v Canton, 17 Conn. 475; Hewison v. New Haven, 37 Conn. 475, 9 Am. Rep. 342; Mitchell v. Rockland, 52 Me. 118; Hill v. Boston, 122 Mass. 344-351, 23 Am Rep. 332; McArthur v. Saginaw, 58 Mich. 357, 55 Am. Rep. 687, 25 N.W. 313; Clark v. Manchester, 62 N.H. 577; Pray v. Jersey City, 32 N.J.L. 394; Taylor v. Peckham, 8 R. I. 349, 91 Am. Dec. 235; Young v. Charleston, 20 S.C. 116, 47 Am. Rep. 827; Hyde v. Jamaica, 27 Vt. 443; Daniels v. Racine, 98 Wis. 649, 74 N.W. 553.) The provision of the charter makes no mention of the word "sidewalk," and, therefore, according to our view, an action will not lie against the city for an injury sustained by reason of a defect in a sidewalk, and that being true, the complaint fails to state a cause of action. In construing these statutes it is generally considered by the court that the legislature intended to put no greater burden upon the corporation than the plain meaning of the language used indicates. In a word, they are usually construed strictly in favor of the defendant. (William's Municipal Liability for Tort, p. 118, sec. 72; Brown v. Skowhegan, 82 Me. 273-276, 19 A. 399; City of Detroit v. Putman, 45 Mich. 263, 7 N.W. 815; Rouse v. Somerville, 130 Mass. 361.) Ruling of the court upon the admission of testimony: It seems to be well settled that where the injuries described are not of a nature which are necessarily, or at least ordinarily and usually permanent, permanency must be alleged in terms, or evidence that the consequences will be permanent is not admissible. (Gulf etc. R. Co. v. Warlick, 1 Ind. Ter. 10, 35 S.W. 235; Kuhn v. Freund, 87 Mich. 545, 49 N.W. 867; Shadock v. Alpine etc. Road Co., 79 Mich. 7, 44 N.W. 158; French v. Wilkinson, 93 Mich. 322, 53 N.W. 530.) While courts, as a general rule, rarely reverse a case because of leading and suggestive questions, we submit that in a case where the record discloses that all questions propounded by a party are leading and suggestive, the court will interfere. They were certainly not proper cross-examination and appellant was prejudiced thereby. (Gridley v. Boggs, 62 Cal. 190; Philadelphia etc. Ry. Co. v. Stimpson, 14 Pet. 445; Smalley v. City of Appleton, 75 Wis. 18, 43 N.W. 826; People v. Denby, 108 Cal. 54, 40 P. 1051; People v. Baird, 104 Cal. 462, 38 P. 310; Last Chance etc. Co. v. Heilbron, 86 Cal. 1, 26 P. 523; McFadden v. Santa Ana, 87 Cal. 464, 25 P. 681; Boggs v. Thompson, 13 Neb. 403, 14 N.W. 393; Hurlbut v. Hall, 39 Neb. 889, 58 N.W. 538; Alexander v. Mandaville, 33 Ill.App. 589; Bell v. Prewitt, 62 Ill. 362; Buckley v. Buckley, 12 Nev. 423.) The court should have given instruction No. 9, requested by appellant. That instruction is as follows: "You are also instructed that the city is bound only to the exercise of reasonable prudence and diligence in the construction of its sidewalks and is not required to see and provide against every possible danger or accident that may occur. It is only required to keep its streets and sidewalks in a reasonably safe condition and it is not an insurer against accidents." While municipal corporations are required to exercise reasonable prudence and diligence in the construction of their sidewalks and in keeping them in a reasonably safe condition, they are not insurers of the safety of persons traveling upon such sidewalks, and the court should have given the instructions. (Chicago v. Bixby, 84 Ill. 82, 25 Am. Rep. 429; William's Municipal Liability for Tort, p. 177, sec. 105.) We earnestly insist that $ 12,000 are excessive damages in an action of this kind, and under the testimony. All of the expert witnesses testified that Mrs. McLean could be cured by a capital operation. It is true that they explained that a capital operation is accompanied by more or less danger to the patient, and requires great skill on the part of the surgeon. This may be said of almost all surgical operations, and while we have no statistics to furnish the court, and while probably there is no testimony in the record to that effect, we submit that it is a notorious fact that operations for Mrs. McLean's alleged difficulty are more numerous and common than any other performed for women. Had Mrs. McLean been rendered a permanent invalid, or cripple, which is by no means the case, the damages would still have been excessive, and for that reason the judgment should be reversed and a new trial ordered. "Although the courts are inclined to allow juries a most liberal exercise of the discretions vested in them with reference to the amount of recovery in personal injury cases, it is not only the power, but one of the highest duties of a court, to interfere, where improper motives have influenced the jury in their assessment of the damages given." (Watson on Damages for Personal Injuries, p. 420, sec. 333; Louisville etc. R. R. Co. v. Minogue, 90 Ky. 369, 29 Am. St. Rep. 378, 14 S.W. 357; De Wardner v. Metropolitan St. R. Co., 1 A.D. 240. 37 N.Y.S. 133.) The right of the court to interfere with the verdict in a personal injury suit, "when the damages found by the jury are clearly excessive, though it has always been cautiously exercised, has never been denied. Such a right is absolutely necessary to the sane administration of justice, and ought in all proper cases, to be ascertained and exercised." (Collins v. Albany etc. R. Co., 12 Barb. (N. Y.) 495; Hamilton v. Great Falls Street Ry. Co., 17 Mont. 334, 42 P. 860, 43 P. 713; Brown v. Southern P. Ry. Co., 7 Utah 288, 26 P. 579; Deep Mining etc. Co. v. Fitzgerald, 21 Colo. 533, 43 P. 210; Slette v. Great Northern Ry. Co., 53 Minn. 341, 55 N.W. 137; Illinois Cent. Ry. Co. v. Welch, 52 Ill. 183, 4 Am. Rep. 593; Quirk v. Siegel-Cooper Co., 26 Misc. 244, 56 N.Y.S. 49; Louisville etc. Co. v. Creighton, 22 Ky. Law Rep. 493, 50 S.W. 627; Union P. Ry. Co. v. Hand, 7 Kan. 380; Kennen v. Gilmer, 5 Mont. 257, 51 Am. Rep. 45, 5 P. 847; Purcell Mill Co. v. Kirkland, 2 Ind. Ter. 169, 47 S.W. 311; Louisville etc. Co. v. Whitley County Court, 20 Ky. Law Rep. 1367, 49 S.W. 332; Houston etc. R. Co. v. Bird (Tex. Civ. App.), 48 S.W. 156; Missouri etc. Ry. Co. v. Turley, 1 Ind. Ter. 275, 37 S.W. 52; Cherokee Packet Co. v. Hilson, 95 Tenn. 1, 31 S.W. 737.) Insufficiency of the testimony: This action was not prosecuted in good faith upon the part of respondents. At the outset of the testimony, respondents did not proceed upon the theory that Mrs. McLean's womb was permanently injured, or retroverted or retroflexed by reason of the accident. During the testimony of J. A. McLean nothing was said about retroversion or retroflexion, in fact, the word "womb" was not discussed. In their testimony the witnesses claimed that Mrs. McLean's injuries consisted of bruised breasts and arms and an abdominal rupture. We believe we are justified in thinking that this theory of respondent's case was an afterthought. If such condition of the womb existed at all, it must have existed prior to the accident. In an action of this kind negligence is the sole basis and extent of the liability. It does not arise unless and until that appears as an element in the case. (Monmouth v. Sullivan, 8 Ill.App. 50; Hunt v. Mayor, 109 N.Y. 134, 141, 16 N.E. 320; Village of Oak Harbor v....