Will v. Village of Mendon

• Court: Michigan Supreme Court
• Writing for the Court: HOOKER, J.
• Citation: Will v. Village of Mendon, 66 N. W. 58, 108 Mich. 251 (Mich. 1896)
• Decision Date: 07 February 1896
• Parties: WILL v. VILLAGE OF MENDON.

66 N.W. 58

108 Mich. 251

WILL v. VILLAGE OF MENDON.

Supreme Court of Michigan

February 7, 1896

Error to circuit court, St. Joseph county; Noah P. Loveridge Judge.

Action bye Mary Will against the village of Mendon. There was a judgment for plaintiff, and defendant brings error. Affirmed.

H. P. Stewart and Howard & Roos, for appellant.

B. E. &amp L. F. Andrews and George L. Yaple, for appellee.

HOOKER J.

The plaintiff recovered a judgment for an injury suffered through a fall on a defective sidewalk by reason of being tripped by the tipping up of a board on July 4, 1889. The defendant claims that the place where the accident occurred was land owned by a railroad company, which was used as a street, and that the city was not responsible for the injury. There was testimony that the city assumed to control and use this land as a public street. The court charged the jury as follows "I instruct you that if you are satisfied from the evidence that the defendant assumed care and control of the walk, and that it was in the care and control of the defendant at the time of the alleged accident, then notwithstanding the fee of the soil over which the walk in question is constructed may have been in the railroad company, that fact alone would not prevent the plaintiff from recovering in this action. If the village assumes the control of a sidewalk, it is its duty to keep it in repair." This instruction was warranted by the cases of O'Neil v. Village of West Branch, 81 Mich. 547, 45 N.W. 1023; Detwiler v. City of Lansing, 95 Mich. 484, 55 N.W. 361. The testimony of Steverns that he repaired this walk in 1886 for the city was proper evidence upon this subject. The same may be said of the council proceedings of December 10, 1888, with reference to repairs. If the resolution did not cover the identical piece of walk, it tended to show that the city had resumed control of this railroad land for the highway.

The testimony of several witnesses as to the condition of the sidewalk in the vicinity of the place where the accident is alleged to have occurred was taken, subject to objection. Mr. Young, the city lamplighter, testified that he went over it early in 1889, and that he notified the council of the bad condition of the walk in this vicinity, and in this particular place. Witnesses were allowed to testify with reference to the condition of the walk for the distance of four or five rods north and south of the cross walk. It is contended that this was improper, inasmuch as the accident was shown to have occurred at a point from 16 to 20 feet south of the cross walk; that the nature of the accident, being occasioned by the tipping up of a plank, was consistent with the theory that the walk at that place was in good repair, and that the plank first became loose at the time of the accident, and, therefore, that the walk might have been in fairly good condition, and the cause of the tipping of the board might have been a defective or rusted nail, not apparent to observation. We think that this testimony was properly admitted. It may have tended to show the age and general condition, as to decay, of this piece of walk, showing that it did or did not require inspection and repair. If these boards were loose, with nails rusted and broken; if stringers and boards showed age,-it might indicate a bad condition of the walk, or at least be evidence tending to show notice of its actual condition to the city authorities. Strudgeon v. Village of Sand Beach (decided at the present term) 65 N.W. 616.

Error is assigned upon the refusal of the court to give several instructions to the jury. An examination satisfies us that the points were covered by the charge given.

We think there is nothing in the point that a witness was cross-examined as to his interest in the case, both in relation to aiding the defendant, and the fact that he was a large taxpayer of the village.

The plaintiff testified to pains in her head and stomach, and it is claimed that this was not admissible, for the reason that the declaration did not include injury to either. Her testimony was as follows: "I am worse in respect to my hip and spine. My spine, from the back of my neck clear down, is sore, and it is very sore in places, and I have a great deal of pain in my head and in my hip; and sometimes there is something that seems as if it catches me in the bottom of my foot, and it seems to wind, and seems to go to the back of my head, and it makes my head ache. (Mr. Howard: We object to any testimony in regard to the head, for there is nothing of that kind in the declaration. [Overruled, and exception taken.] Mr. Yaple: So far as recovery is concerned, we are limited to the declaration.) It makes me sick. It commences in that way, and it causes me to be very sick with pain, and it causes me to be very sick at the stomach. There are a good many times, if I go to church, that I have to go out because I am sick. [Same objection as before. Same ruling, and exception.] The sickness that I spoke of in church would be a sharp pain in my hip and side, and it strikes to my stomach." The declaration alleges injury to feet, legs, side, back, spine, and womb, by which she became sick, very lame, diseased, and disabled, and suffered great pain. The evidence was not admitted to prove injuries to the head and stomach, but as showing the pain suffered from the injury to other members. We think it was not error to admit this testimony.

The plaintiff's husband was permitted to testify to the complaints and statements of the plaintiff as to the location, nature, and extent of her pain and suffering. This was objected to as hearsay. He was present at the time of the accident, and cared for her afterwards. Unless her exclamations and statements upon this subject were admissible, her own testimony was the limit; and we think his testimony was within the rule laid down in Hyatt v Adams, 16 Mich. 199. Mr. Justice Christiancy there said: "The court did not err in admitting the evidence of exclamations of pain and suffering uttered by the deceased, and her complaints as to the nature of her suffering during and after the operation, though some of them were in the absence of the defendant. This is the natural and ordinary mode in which physical pain and suffering are made known to others, and the only mode by which their nature and extent can be ascertained. Such exclamations and statements are...