Mulliken v. City of Corunna

• Decision Date: 21 July 1896
• Citation: 110 Mich. 212,68 N.W. 141
• Court: Michigan Supreme Court
• Parties: MULLIKEN v. CITY OF CORUNNA.

68 N.W. 141

110 Mich. 212

MULLIKEN v. CITY OF CORUNNA.

Supreme Court of Michigan

July 21, 1896

Error to circuit court, Shiawassee county; Luke S. Montague, Judge.

Action by Mary W. Mulliken against the city of Corunna. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Austin E. Richards (A. L. Chandler, of counsel) for appellant.

Watson & Chapman, for appellee.

LONG C.J.

This suit was brought to recover for an injury caused by the alleged negligence of the defendant in not keeping a cross walk in repair. The injury occurred on May 24, 1894. Plaintiff alleges that the injury was caused by a hole in this cross walk, into which she fell and injured her leg and, as she claims, permanently disabled herself. The defendant contended on the trial that there was no hole at such place, and, if there was, the city had no notice of it either actual or constructive.

The testimony of plaintiff shows that in the winter of 1893 and the spring of 1894 this hole was noticed by passers-by, and was from 14 to 18 inches in length, and from 3 to 5 inches wide, tapering at one end. Several of plaintiff's witnesses testified to having seen this hole there during the fall and winter of 1893-94, and up to the time of the accident. This was disputed by the defendant, who introduced testimony tending to show that there was no hole there; but that question was left, under the charge of the court, for the determination of the jury. On the trial, plaintiff introduced as a witness Dr. Curtis, who testified that he attended the plaintiff, as her physician, after the injury. He stated that when he first called he found her suffering a great deal of pain, her left ankle was badly swollen, and there was a fracture of the small bone of the leg on the outside, reaching about 1 1/2 inches above the ankle joint. He was then asked, "What complaint did she make at that time, if you remember, about the pain in her head and back?" This was objected to as incompetent and immaterial, but admitted by the court. The witness answered "She did complaint of her back at that time; telling me, I think, it was from the effects of the fall." Defendant's counsel contends that the court was in error in permitting the witness to state what complaint she made, as it was not confined to any particular time. We think the testimony shows conclusively that it was confined to the time immediately after the injury, and was properly admitted. Will v. Village of Mendon (Mich.) 66 N.W. 58, and cases there cited. The question itself was proper, and, if the answer had been limited to the...