Pyke v. City of Jamestown
| Decision Date | 15 February 1906 |
| Court | North Dakota Supreme Court |
Rehearing April 24, 1906.
Appeal from District Court, Stutsman county; Burke, J.
Action by Ellen Pyke against the City of Jamestown. From a judgment for plaintiff defendant appeals.
Affirmed.
F. G Kneeland and S. L. Glaspell, for appellant.
The amendment of a pleading is by rewriting it, leaving out such allegations and inserting such others as the pleader may desire. Satterlund v. Beal, 1 N.D. 122, 95 N.W. 518.
Where one knows of a defect in a sidewalk, it is contributory negligence not to remember and avoid the danger, unless satisfactory excuse is given for forgetting it. Beach on Contributory Negligence, 257; Lyon v. City of Grand Rapids, 99 N.W. 311; Collins v. City of Janesville, 87 N.W. 241; Bender v. Town of Minden, 100 N.W. 352; Tuttle v. Town of Clear Lake, 102 N.W. 136; Beach on Cont. Neg. 39; Gilman v. Deerfield, 15 Gray, 577; Baltimore Ry. Co. v Whitacre, 35 Ohio St. 627; Bruker v. Town of Covington, 69 Ind. 33, 35 Am. Rep. 202; Kewanee v Depew, 80 Ill. 119; City of Erie v. Magill, 101 Penn St. 601, 47 Am. Rep. 739; Walker v. Town of Reidsville, 2 S.E. 74; C. R. I. & P. R. R. Co. v. Houston, 95 U.S. 697, 24 L.Ed. 542; Schefler v. Sandusky, 33 Ohio St. 246; Hudon v. Little Falls, 71 N.W. 678; Dillon on Mun. Corp. (4th Ed.) 1007, 1026; Wilson v. Charlestown, 8 Allen, 137; Parkhill v. Town of Brighton, 15 N.W. 853; Elliott on Roads and Streets, 472.
Presentation of a claim for damages to the mayor and common council is a condition precedent to an action for damages. Elliott on Roads and Streets, 475; 20 Enc. Pl. & Pr. 1231; 4 Enc. Pl. & Pr. 659; Gay v. Cambridge, 128 Mass. 387; Schmidt v. City of Fremont, 97 N.W. 830.
Claim must be presented to the council in section. Coleman v. City of Fargo, 8 N.D. 69, 76 N.W. 1051; Whalen v. Bates, 33 A. 224; Hiner v. City of Fondulac, 36 N.W. 632; Selden v. Village of St. Johns, 72 N.W. 991; Doyle v. City of Duluth, 76 N.W. 1029; City of Denver v. Saulcey, 38 P. 1098; Wilton v. City of Detroit, 100 N.W. 1020; Rhoda v. Alameda Co., 52 Cal. 350; Reining et al. v. City of Buffalo, 102 N.Y. 308, 6 N.E. 792; Curry v. City of Buffalo, 135 N.Y. 366, 32 N.E. 80.
Delivery of papers to an officer out of his office is not filing the same. Peterson v. Village of Cokato, 87 N.W. 615; 8 Enc. Pl. & Pr. 924; Schulte v. Bank, 34 Minn. 48; Gates v. State, 128 N.Y. 221, 28 N.E. 373.
Whether an affidavit was sworn to was a question of fact to be proved as any other question of fact, by competent testimony. Bantley v. Finney et al., 62 N.W. 213.
The certificate of a notary is presumptive evidence of its contents. Smith et al. v. Johnson et al., 62 N.W. 217.
A physician who has treated a person, administered drugs, etc., to her, is competent to express an opinion as to the condition of such person. Rogers on Expert Testimony (2d Ed.) 121, 161.
If a statement of facts is according to testimony and contains those essential to the proponent's theory, it is a proper basis for opinion evidence. Rogers on Expert Testimony, 65; Herpolsheimer et al. v. Funke, 95 N.W. 688; Wharton on Evidence (3d Ed.) 441.
S. G. Cady and John Knauf, for respondent.
If the error exists in not rewriting, serving and filing an amended complaint, it is an "invited error," and cannot be availed of. Davis v. Dunlevy, 53 P. 250; Olsin v. Teeford, 34 S.E. 168; American Grocery Co. v. Kennedy, 28 S.E. 251; North Texas Bridge Co. v. Coleman, 58 S.W. 101; Walton v. Chicago Elec. Ry. Co., 56 F. 1006.
Where a party agrees to the manner in which his rights shall be submitted to the trial court, he cannot complain on appeal. Judge v. French, 3 S. & P. 263; Green v. Taney, 3 P. 423; Crab v. Mickels, 5 Ind. 145; Haggard v. Atlie, 1 Greene, 44; Wiscomb v. Cubberly, 33 P. 320; Harris v. Loyd et al., 28 P. 736; Perego v. Dodge et al., 163 U.S. 160, 41 L.Ed. 113; 16 S.Ct. 971; Mai v. Herdenhemer, 63 Texas, 304; Mertend v. Roche, 57 N.Y.S. 349; Graham v. Rooney, 42 Iowa 557.
Where an error results in no prejudice there will be no reversal. Belt v. Farrow, 83 Ga. 695; Kissel v. Lewis, 156 Ind. 233; Gregg v. Berkshire, 62 P. 550; Hewan v. Morris, 96 F. 703; Cooney v. Lowenthal, 61 P. 940; Van Patters v. Burr, 7 N.W. 522; Pittsburg v. Broderson, 62 P. 5; Bannan v. Warfield, 42 Md. 22; Gray v. Smith, 83 F. 824; Walker v. Beever, 50 Iowa 504; Lyons v. Red Wing, 78 N.W. 868; Smith v. Smith, 57 N.Y.S. 1122; Whitehall v. Crawford, 37 Ind. 147.
Previous knowledge of a defect in sidewalk or highway does not always constitute contributory negligence barring a recovery, as each case must be controlled by its own circumstances, and if the question is not free from doubt, it is for the jury to determine. Linnver v. Gillilan, 24 N.W. 44; N. & N. R. Co. v. Bailey, 9 N.W. 50; Alexander v. City of Big Rapids, 42 N.W. 1071; Shaw v. Soline Twp., 71 N.W. 642; S. C. & P. R. R. Co. v. Stout, 17 Wall. 657, 21 L.Ed. 745; Lowell v. Township of Waterton, 25 N.W. 517; City of Altoona v. Lutz, 60 Am. Rep. 346; Finn v. City of Adrian, 53 N.W. 614; Morrill on City Negligence, 139; Smith v. Ryan, 29 N.Y. S. R. 672; Fort Wayne v. Breese, 123 Ind. 581.
Whether respondent exercised due care is one of the facts for the jury. 15 Am. & Eng. Enc. Law, 466; Kingsley v. Morse, 40 Ark. 577; Robinson v. Commonwealth, 22 Vt. 213; McQuillean v. Seattle, 45 Am. St. Rep. 800; Talbot v. Taunton, 140 Mass. 552; George v. Halvorson, 110 Mass. 506; Barton v. Springfield, Id. 131; Reed v. Northfield, 13 Pick. 94; Dwire v. Bailey, 131 Mass. 170; Stoker v. Minneapolis, 32 Minn. 478; Collins v. City of Janesville, 87 N.W. 241; Barry v. Ferdildsen, 72 Cal. 254.
It is enough that respondent used the same walk in the same manner as persons of ordinary prudence would. Hill v, Seekonk, 119 Mass. 85; Hawks v. Inhabitants of Northampton, 121 Mass. 10; Woods v. City of Boston, 121 Mass. 337; Weare v. Fitchburg, 110 Mass. 334; Kelley v. Blackstone, 147 Mass. 448; Mahoney v. Met. R. R. Co., 104 Mass. 73; Thomas v. W. W. Tel. Co., 100 Mass. 156.
The fact that plaintiff knew of the condition of the walk two or three weeks before the accident and yet passed that way is not conclusive evidence of negligence. Dotton v. Albion, 57 Mich. 477; Clinton v. Harris, 64 Mich. 477; Reed v. Northfield, 13 Pick. 94; Frost v. Waltham, 12 Allen, 85; Whittaker v. West Boylston, 97 Mass. 273; Looney v. McLean, 129 Mass. 33; Walker v. Decatur Co., 67 Iowa 307; Kendall v. Albia, 73 Iowa 341; Village of Orleans v. Perry, 40 N.W. 417; Larsh v. City of Des Moines, 74 Iowa 512, 38 N.W. 384; Mill Creek Twp. v. Perry, 10 Cent. Rep. 299; Shook v. City of Cohoes, 108 N.Y. 648, 15 N.E. 531; Strong v. Sacramento & P. R. R. Co., 61 Cal. 326; Klanowski v. Grant T. R. R. Co., 57 Mich. 528.
Momentary forgetfulness is not necessarily conclusive proof of contributory negligence. Kelly v. Blackstone, 9 Am. St. Rep. 730; Malloney v. City of St. Paul, 54 Minn. 398, 56 N.W. 94.
Filing notice of claim with city auditor is a sufficient presentation to the "common council." Roberts v. Village of St. James, 79 N.W. 519; Doyle v. city of Duluth, 76 N.W. 1029; Bacon v. City of Antigo, 79 N.W. 31.
A paper is filed when delivered to the proper official, and by him received to be kept on file. Bouvier's Law Dict. 782; Stone v. Crow, 51 N.W. 335; Beebe v. Morrill, 76 Mich. 114; Bishop v. Cook, 13 Barn. 326; Lamson v. Falls, 6 Ind. 309; Pinders v. Yager, 29 Iowa 468; Tregombo v. Comanche Mill & Milling Co., 57 Cal. 501.
A magistrate's certificate is conclusive as to the matter therein, except for fraud or mistake of officer. Davis v. Jenkins, 40 Am. St. Rep. 197; Heeter v. Glasgow, 21 Am. Rep. 46; Kerr v. Russell, 69 Ill. 666.
Opinion testimony must be based upon a clear statement of assumed facts, and these based upon all of the testimony when undisputed, or if disputed, upon that which counsel claims to be true according to his theory of the case. Commonwealth v. Rogers, 7 Metc. 500, 41 Am. Dec. 458; Jefferson Ins. Co. v. Cotheal, 7 Wend. 72, 22 Am. Dec. 567; Re Barber's Estate, 22 L. R. A. 90; Turner v. Twp. of Ridgeway, 105 Mich. 409, 63 N.W. 406; Dickenson v. Fitchburg, 13 Gray, 546.
The truth of facts appearing in the evidence according to the theory of the examiner is assumed. Rivard et al. v. Rivard et al., 66 N.W. 681; Moore v. C. M. & St. P. Ry. Co., 47 N.W. 273; Kerr v. Lundsford et al., 31 W.Va. 659, 2 L. R. A. 668; Louisville N. A. & C. R. Co. v. Shires, 108 Ill. 617; Central Branch Union P. R. Co. v. Nichols, 24 Kan. 242; Murphy v. Marston Coal Co., 183 Mass. 385, 67 N.E. 342.
Facts should be stated hypothetically and call for the opinion based thereon. Dexter v. Hall et al., 15 Wall. 9, 21 L.Ed. 73, 79; People v. Harris, 136 N.Y. 423, 33 N.E. 65; C. & A. R. Co. v. Glenny et al., 175 Ill. 238, 51 N.E. 896; Fuller v. City of Jackson et al., 92 Mich. 197, 52 N.W. 1075.
The plaintiff recovered a verdict for $ 5,000 for personal injuries sustained through a fall which was caused by a defective sidewalk upon one of the defendant's streets. A motion for judgment notwithstanding the verdict or for a new trial was made and denied. The defendant has appealed from the order overruling its motion, and also from the judgment.
The first assignment of error is based upon the refusal of the trial court to grant defendant's motion for a directed verdict. The motion was upon three distinct grounds "(1) That there is no complaint served or filed in this action; (2) that there is no allegation in the pleading and no evidence to prove any presentation of a claim for damages, as provided by sections 2172 and 2173 of the Revised Codes of 1899, to the mayor and common council of...
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