Moore v. City of Kalamazoo
| Decision Date | 28 April 1896 |
| Citation | 109 Mich. 176,66 N.W. 1089 |
| Court | Michigan Supreme Court |
| Parties | MOORE v. CITY OF KALAMAZOO. |
Error to circuit court, Kalamazoo county; George M. Buck, Judge.
Action by Abbie Moore against the City of Kalamazoo to recover damages for injury alleged to have been sustained by reason of a defective sidewalk. There was judgment for plaintiff and defendant appealed. Affirmed.
George P. Hopkins, for appellant.
D. O French (N. H. Stewart, of counsel), for appellee.
The defendant appeals from a judgment for $4,500 in favor of the plaintiff, who complained of an injury to her knee, crippling her permanently, suffered by reason of the defendant's sidewalk. The brief filed by counsel for the defendant does not discuss the assignments of error seriatim, and we shall therefore deal with the questions discussed, rather than specific assignments. Evidence tending to show that there were other defects in the immediate vicinity, has so often been held admissible as bearing upon the question of notice that we think it unnecessary to cite authorities, especially as counsel framed a request to charge in which he asked the court to limit the use of that testimony to the subject of notice, and alleges error upon the failure of the court to give it. We think the request was given, in effect, and the omission of a part not being prejudicial does not call for a reversal of the case. Evidence that others stepped into the same hole in the walk is admissible under the case of Lombar v. Village of East Tawas, 86 Mich. 14, 48 N.W. 947. It is unimportant whether they received injury or not, as was said in Corcoran v. City of Detroit, 95 Mich. 86, 54 N.W. 692. Two witnesses testified to stepping in holes in that vicinity, which was substantially the same as saying that they saw the holes. It was said that one fell, but this testimony was stricken out. The evidence allowed to remain was admissible upon the question of notice.
The court committed no error in declining to instruct the jury as requested, to the effect that the defendant, with 300 miles of sidewalk, would not be held to as great diligence in caring for its walks as a small village would be. The law requires that reasonable care shall be given to walks, and makes no distinction between localities, except as circumstances affect the question of what is reasonable. We should not care to lay down the rule that sparsely settled or small communities must have better or more carefully guarded walks and ways than large cities. The cases cited do not, in our opinion, state any such proposition, or support it.
The remaining questions relate to the subject of damages. It is said that the court erred in admitting proof relative to plaintiff's earnings, and also in stating to the jury that they "should take into account her past earnings during the time that she has already been injured, and the time that you find, from the evidence, that she will remain incapable of earning anything in the future," for the reason that the "declaration contains no allegation which would permit her to recover upon any such theory." The declaration states that she was "prevented from attending to her necessary household and lawful affairs, duties, and business during all of this time performed, and thereby was deprived of and wholly lost all the advantages and profits to be derived therefrom and thereby;" and...
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