Stewart v. City of Idaho Falls, 6707

• Decision Date: 01 June 1940
• Docket Number: 6707
• Parties: V. A. STEWART and JENNIE STEWART, Husband and Wife, Appellants, v. THE CITY OF IDAHO FALLS, Respondent
• Court: Idaho Supreme Court

103 P.2d 697

61 Idaho 471

V. A. STEWART and JENNIE STEWART, Husband and Wife, Appellants, v. THE CITY OF IDAHO FALLS, Respondent

No. 6707

Supreme Court of Idaho

June 1, 1940

MUNICIPAL CORPORATIONS-DEFECTIVE SIDEWALK-INJURIES TO PEDESTRIAN-KNOWLEDGE OF DEFECTS-CONTRIBUTORY NEGLIGENCE-TRIAL-CONDUCT OF COUNSEL-UNAUTHORIZED ARGUMENT-REVIEW.

1. Timely and proper objection should be made to remarks of counsel properly to preserve and present to the Supreme Court alleged errors in remarks so that the trial court may have an opportunity to prevent or, if possible, eradicate the errors by admonition or instruction, and so that there may be adverse ruling or action by the trial court for review by the Supreme Court.

2. Judgments will not be reversed because of misconduct of counsel at the trial, unless the reviewing court is of the opinion that the misconduct had prevailing influence on the jury to the detriment of the appellant.

3. Where plaintiffs' counsel in personal injury action against city objected to any reference to burdens of taxpayers in argument of city's counsel to jury, and trial court ruled that city's counsel might proceed, and stated only that he should not mind where plaintiff's counsel came from, objection was in effect overruled, and the ruling was deemed excepted to under statute. (I. C. A., sec 7-502.)

4. Though alleged improper argument of mayor and city's counsel in personal injury action against city should have been objected to and presented in reporter's transcript there was enough before Supreme Court to call for a ruling on argument of counsel, where one of plaintiffs' attorneys filed an affidavit after verdict in support of motion for new trial complaining of improper argument and setting it out and there was a positive showing of some objection.

5. In action against city for injuries sustained by pedestrian who stumbled on raised portion of sidewalk and sustained a broken arm and bruises in fall, though degree of care to be exercised by city in construction and maintenance of its streets was a material issue and expense thereof was borne by taxpayers, that matter had no bearing on question of negligence, and objection to argument of city's counsel referring to burden on taxpayers of a judgment against city should have been sustained.

6. The decisive factor in determining whether a judgment should be reversed because of remarks of counsel is whether there was prejudice.

7. In action against city for injuries sustained by a pedestrian who stumbled on raised portion of sidewalk and sustained a broken arm and bruises in fall, where only factual defense was contributory negligence, and defect was universal in city, argument of city's counsel referring to burden on taxpayers of a judgment against city was prejudicial and required reversal of judgment for city, in absence of instructions and admonitions curing or alleviating effect of remarks.

8. In action against city for injuries sustained by pedestrian who stumbled and fell on raised portion of sidewalk pedestrian's knowledge of causal defects could not be shown by her knowledge of other defects unconnected with the one causing injuries.

9. In action against city for injuries sustained by pedestrian who stumbled and fell on raised portion of sidewalk, pedestrian's knowledge that the kind of defect causing her fall was commonly found wherever poplar or cottonwood trees grew along sidewalk might have a legitimate bearing on measure of due care and thus on question of contributory negligence, and hence cross-examination of pedestrian concerning her knowledge of trees growing along walks throughout city and of similar defects in other places in city was not improper.

10. Contributory negligence of pedestrian who stumbled on raised portion of sidewalk and sustained a broken arm and bruises in fall was for jury.

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. Isaac McDougall, Presiding Judge.

Action for personal injuries. Judgment for defendant. Reversed and remanded for a new trial.

Reversed and remanded. Costs to appellants.

Otto E. McCutcheon and Anderson, Bowen & Anderson, for Appellants.

All of the elements necessary to a recovery in this case were established by the plaintiffs' evidence, to wit: First, that the plaintiff Jennie Stewart, while using the sidewalk properly, was injured by reason of a defect. Secondly that the sidewalk was not reasonably safe on account of defect. Third, that the defect had existed a sufficient length of time for the municipal corporation, in the exercise of reasonable care, to have known of its existence. (Barnes v. City of St. Joseph, 151 Mo.App. 523, 528, 132 S.W. 318.)

It is not necessary to except to the argument of counsel in order to raise the question where counsel indulges in gross misconduct and inflammatory argument; and this is particularly true where, after we interrupted Albaugh twice, the court approved the argument and tacitly threatened us with contempt. (Preston v. Mutual Life Ins. Co., 71 F. 467; Cook v. Doud, 14 Colo. 483, 23 P. 906; Bradley v. Krogen, 67 N.D. 108, 270 N.W. 93, syllabus 4 in the opinion; North Chicago Street R. R. Co. v. Leonard, 67 Ill.App. 603.)

The cross-examination of Mrs. Stewart with respect to defects in other sidewalks at other places in the city was wholly inadmissible. (Miller v. Mullan, 17 Idaho 28, 104 P. 660, 19 Ann. Cas. 1107; Hanson v. City of Anamosa, 177 Iowa 101, 158 N.W. 591; Petrelli v. City of New Haven, 116 Conn. 144, 163 A. 759; Van Cleave v. City of Chicago, 165 Ill.App. 234; City of Louisville v. Webber, 254 Ky. 766, 72 S.W.2d 470; Finnane v. City of Perry, 164 Iowa 171, 145 N.W. 494; McNeill v. City of Girardeau, 153 Mo.App. 424, 134 S.W. 582.)

Ralph L. Albaugh and Chase A. Clark, for Respondent.

A city is not an insurer of the safety of those who use its sidewalks, and is not required to keep them in an absolutely safe condition; the law does not prescribe a measure of duty so impossible of fulfillment, or a rule of liability so unjust and severe. (City of Dayton v. Glaser, 76 Iowa 471, 81 N.E. 991, 12 L. R. A., N. S., 916; Mayor etc. of City of Meridian v. Crook, 109 Miss. 700, 69 So. 182, L. R. A. 1916A, 482.)

Remarks made by counsel in the heat of argument are always taken by reasonable men "cum grano salis," and when their impropriety is called to the attention of the jury by the court, it is but rarely that harm results. (City of Prescott v. Sumid, 30 Ariz. 347, 247 P. 122, at p. 125.)

Counsel cannot sit quietly by, knowing that error has been committed, and await the verdict of the jury, and then upon motion for a new trial argue such error as ground for a new trial. (Hurt v. Monumental Mercury Min. Co., 35 Idaho 295, at p. 302, 206 P. 184; McDonald v. Challis, 22 Idaho 749, 128 P. 570.)

GIVENS, J. Budge, Morgan and Holden, JJ., concur. AILSHIE, C. J. (Dissenting in Part and Concurring in Conclusion).

OPINION

GIVENS, J.

--Appellants sued respondent for damages on account of the following accident:

October 24, 1935, at about 3 P. M., appellant Jennie Stewart, accompanied by her daughter, left her home at 220 Sixth Street in Idaho Falls, proceeding down Sixth Street onto Ridge Avenue. Approximately midway between Cedar and Ash Streets she struck her foot on a portion of the sidewalk that had been raised about three inches above the level of the sidewalk by roots of trees growing along the walk. The force of the fall threw her on her side, her right shoulder and head striking the pavement. She was taken to a hospital where it was found her arm was broken and her shoulder and head painfully bruised. An airplane splint was put on her arm but two weeks later, because she complained of severe pain, it was removed and a different type of dressing applied. The arm was disabled for some six months and during that time appellant was unable to lie down, resting only in a sitting position. The undisputed testimony of the attending physician is that function in the injured arm is permanently impaired fifty per cent from normal.

The only conflict in the evidence is as to whether or not leaves had fallen on the sidewalk and partially or totally obscured or covered up the defect.

Appellant's principal assignment of error is the claimed prejudicial argument of counsel for respondent, shown in part by the reporter's transcript as follows:

"Mr. ANDERSON: We object to counsel being permitted to say here that the tax payers shouldn't be required to pay in this case regardless,--

"Mr. ALBAUGH: --I didn't say anything about this case, and I haven't finished my sentence. I am arguing to the jury.

"Mr. ANDERSON: And I am interrupting you, too. We object to any argument here that these people shouldn't recover the damages they have coming because it may be paid by the tax payers, as improper, and misconduct on the part of counsel.

"Mr. ALBAUGH: If your Honor please, may I continue with my argument?

"The COURT: Yes; go ahead, Mr. Albaugh. Don't develop your present thought though.

"Mr. ALBAUGH: I want to develop the thought, your Honor, to this extent, that we haven't yet come to the point in this country where the tax payers of a county, a city, or any municipal corporation must carry people around on little pillows to prevent them from having an accident.

"Mr. ANDERSON: We object to any reference to the tax payers, or the burdens of tax payers.

"The COURT: You may proceed, Mr. Albaugh.

. . . .

"Mr ANDERSON: I object to counsel arguing to the jury they should decide against the plaintiffs because she is represented by attorneys from Pocatello, and repeating that we are ashamed of it, that we are from Pocatello, as misconduct.

"Mr ALBAUGH: Then why object, if you...