Struble v. De Witt

• Decision Date: 26 June 1911
• Docket Number: No. 16,235.,16,235.
• Citation: 89 Neb. 726,132 N.W. 124
• Parties: STRUBLE v. VILLAGE OF DE WITT.
• Court: Nebraska Supreme Court

89 Neb. 726

132 N.W. 124

STRUBLE

v.VILLAGE OF DE WITT.

No. 16,235.

Supreme Court of Nebraska.

June 26, 1911.

Syllabus by the Court.

Upon the first trial of the case defendant objected to an instruction given by the court, and prepared and offered an instruction in lieu thereof. Upon appeal this court reversed the judgment for error in the instruction given, and in refusing the requested instruction. Upon a second trial the court gave the instruction formerly requested by defendant and approved by this court. Held that, upon second appeal of the same case, this court will not reverse the judgment because of alleged error in said instruction.

A married woman who is accustomed to receive compensation for services rendered and work performed for others than her own family may contract for medical services or other necessaries for herself and family, and in an action by her to recover damages for personal injury it is not error to instruct the jury that she can recover “such amount as she has necessarily expended for medical care,” and that they should include “such reasonable charges as she has incurred and become obligated to pay.”

Nonexpert witnesses are competent to testify as to circumstances and conditions that any person of ordinary intelligence might observe, and such witnesses may testify whether a person who has been injured, and with whom they were familiar, appeared to be suffering pain, the appearance of her injury, and similar matters observed by them tending to show the nature and extent of the injury.

When the evidence is conflicting as to whether physical conditions existing some time after a personal injury were caused or effected by such injury, the question should be submitted to the jury upon all of the evidence.

When part of a confidential communication between physician and patient is put in evidence by one party, the other party may give the whole communication “on the same subject.” The trial court must determine whether the evidence offered is on the same subject, and its ruling will not be regarded as erroneous unless there is a clear abuse of discretion.

In an action against a municipal corporation for injuries sustained by a fall upon a defective walk, the fact that the person injured had passed over the same walk several times before the accident, and might have avoided danger by taking another way, and was in a delicate physical condition, and was carrying articles which made it more difficult to avoid the accident, will not constitute such evidence of contributory negligence as to require a peremptory instruction for the defendant.

A verdict for $25 for “medicine, doctor's bill, and nurse's bill” will not be set aside as unsupported, although there is no evidence that any nurse's bills have been incurred, the evidence being sufficient to support a verdict in that amount for “doctor's bills” incurred.

A verdict for $200 for “permanent injuries” will not be set aside as unsupported if the evidence justifies a finding of damages in that amount for injuries sustained as alleged.

Appeal from District Court, Saline County; Hurd, Judge.

Action by Matilda Struble against the Village of De Witt. Judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 81 Neb. 504, 116 N. W. 154.Ralph D. Brown and Venrick & Green, for appellant.

Bartos & Bartos and Hall, Woods, Bishop & Pound, for appellee.

SEDGWICK, J.

The plaintiff obtained a verdict and judgment in the district court for Saline county against the defendant for damages resulting from a fall upon a defective walk in the defendant village. The defendant has appealed.

[1] 1. The first contention of the defendant is that the court erred in giving the following instruction: “The defendant is not required to have the sidewalks so constructed or maintained in such condition of repair as to secure absolute immunity in using them, nor is it bound to employ the utmost care and exertion to that end. Its duty under the law is only to see that its sidewalks are reasonably safe for persons exercising ordinary care and caution.” The criticism is that the jury should not have been told that the village was required absolutely “to see that its sidewalks are reasonably safe,” but the village is only required to use reasonable diligence in that regard. If the instruction complained of was the only one defining the duty of the village there might be some ground for this criticism. The court, however, correctly instructed the jury as to the necessity of notice to the defendant of the defective condition of the walk, or circumstances which would imply such notice, and that the plaintiff could not recover unless the jury also found from the evidence that the defect in the sidewalk was caused “by the failure of the officers of the defendant village to use reasonable diligence to keep the walk upon which plaintiff received her injuries in a reasonably safe condition for use by persons passing over it using ordinary care and prudence.”

It must also be considered that an instruction in the language complained of was approved by this court in City of Lincoln v. Smith, 28 Neb. 762, 45 N. W. 41;City of Beatrice v. Reid, 41 Neb. 214, 59 N. W. 770;City of Aurora v. Cox, 43 Neb. 727, 62 N. W. 66, and in Anderson v. City of Albion, 64 Neb. 280, 89 N. W. 794.

From the opinion in this case upon a former appeal, 81 Neb. 504, 116 N. W. 154, it appears that upon the first trial in the district court the defendant village requested the court to give the identical instruction now complained of, and in considering the instruction this court in the opinion said that this instruction and another one there mentioned, “correctly stated the law, were in point, and should have been given.” The trial court accordingly upon the second trial gave the instruction which had been requested by the defendant and had been approved by this court, and the defendant cannot now insist in this case that the court erred in so doing.

[2] 2. It is contended that the court erred in instructing the jury as to the measure of damages. That part of the instruction objected to is as follows: “The measure of her damages is such amount as she has necessarily expended for medical care and nursing and medicines. (As to these items it is not necessary that she should actually have paid them, but you are entitled to include such reasonable charges as she has incurred and become obligated to pay.)” The plaintiff is a married woman, and it is stated in the brief that “the testimony fails, absolutely, to show that she was possessed of any separate estate.” This it is said brings the case within the rule laid down in Pomerene Co. v. White, 70 Neb. 177, 98 N. W. 1040, and the following is quoted from the syllabus and opinion in that case: “In an action for personal injuries by a married woman, she is not entitled to recover the value of medical services rendered, in the absence of proof that she has paid for such medical services, or that she is the owner of a separate estate which might become liable therefor. * * * As the testimony in this case fails to show the existence of a separate estate owned by plaintiff, or that she has actually expended any money for medical services, under...