Tenney v. Rapid City

• Decision Date: 22 July 1903
• Citation: 17 S.D. 283,96 N.W. 96
• Parties: JENNIE E. TENNEY, Plaintiff and respondent, v. CITY OF RAPID CITY, Defendant and appellant.
• Court: South Dakota Supreme Court

17 S.D. 283

96 N.W. 96

JENNIE E. TENNEY, Plaintiff and respondent, v. CITY OF RAPID CITY,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Pennington County, SD

Hon. Levi McGee, Judge

Reversed

A. K. Gardner

Attorney for appellant.

Edmund Smith, Fred H. Whitfield

Attorneys for respondent.

Opinion filed July 22, 1903

CORSON, J.

Plaintiff brought this action to recover damages for injuries alleged to have been sustained by her by reason of the defective condition of the sidewalks of the defendant city. The plaintiff claims to have received injuries at five different times, extending over a period of about a year, and her complaint contains five counts or causes of action. Verdict and judgment were in favor of the plaintiff, and the defendant has appealed.

The defendant has assigned numerous errors, but in the view we take of the case it will only be necessary to consider three of them. The counsel for the plaintiff was permitted to ask, and the plaintiff to answer, over proper objection on the part of the defendant, the following questions:

“Now, referring to the injury at that time, and the time you were laid up and suffering, what would you say in your judgment was the amount of damages you sustained?”

The witness answered,

“I should say it was at least $200 for that time.”

She was then asked the following question:

“Now, referring to the next accident, Mrs. Tenney, which occurred up near the Mathias Place, whatple would you say that accident damaged you, considering the loss of time and pain, and your condition since as a result of it?”

She answered:

“The same as I did.”

The witness was then asked the following question:

“You may go on and state to the jury what, in your opinion and judgment, was your damage for that, accident at the Jester sidewalk in October, 1899?”

She answered,

“$100.”

Q. “Referring to the second accident, what., in your opinion, was the damage for that accident?”

She answered,

“I would say $100.

Q. Now, referring to the Kirkham Place—the injury there, the last one, in December, 1899, or January. 1900—state what damage you sustained for toss of time, expense money, nurse, medicine; and doctor bills which were incurred and have not been paid.

A. I should say $500.”

Motion was made to strike out the several answers, and denied. This evidence was clearly inadmissible. It was the province of the jury to determine the amount of damages to which the plaintiff was entitled if they found that she was entitled to any, and it was not competent for the plaintiff to give her opinion as to the amount of damages she had sustained. Webster v. White,(1896); Tetrault v. O’Connor, 76 N.W. 225; Kneeland v. Great Western Ele. Co., 81 N.W. 67; Erickson v. Soppy,(1897). It may be stated as a general rule that even an expert witness cannot be allowed, in giving his evidence, to usurp the province of the court and jury by drawing conclusions from the facts upon which the case depends. Jones on Ev. 374. There is an exception to the general rule, but this case does not come within the exception.

The plaintiff offered in evidence the life tables of the expectation of life of the Northwestern Life Insurance Company. The defendant objected to the offer, for the reason that it was irrelevant and immaterial to any issue in this action, there being no proof of permanent disability, and was not the proper basis for the measure of damages. Objection overruled, and the defendant excepted. The admission of these life tables was clearly erroneous, and constituted prejudicial error. No evidence is disclosed by the record tending to prove that the plaintiff was permanently injured or might not recover from the injuries received. The admission of these tables, therefore, constituted reversible error. Foster v. Village of Bellaire, 127 Mich. 13, 86 N.W. 383; Leach v. R. R. Co., 125 Mich. 373, 84 N.W. 316; Sax v. Railway Co., 125 Mich. 252. 84 AmStRep 572; Mott v. Detroit, G. H. & M. R. R. Co., 120 Mich. 127, 79 N.W. 3; City of Honey Grove v. Lamaster (Tex. Civ. App.) 50 S.W. 1053.

In Foster v. Village of Bellaire, supra, the Supreme...