Osier v. Consumers Co.

*794 GIVENS, J. This cause was here before and reversed. (Osier v. Consumers Co., 41 Ida. 268, 239 Pac. 735.) This appeal is from the judgment entered on the retrial, upon certain instructions given and refused and that the verdict is so excessive as to show passion and prejudice. The facts herein are quite similar to those set forth in Osier v. *795 Consumers Co., supra, damages being awarded herein in a greater sum than formerly. Appellant contends that the following instruction: “You are instructed that a person has a right to walk along a path, sidewalk or highway ordinarily or customarily traveled by pedestrians and that in doing so he has a right to presume that the same is safe. You are further instructed, however, that if youtfind from the evidence that at the time of the injury, Mrs. Osier knew that the obstruction was there, then the presumption as stated above does not apply. You are further instructed, however, that the fact that she had known of it several weeks before is not the gist of the matter, but the real gist of the matter is her present knowledge. If the obstruction was slight or one easily removed and you find it was the duty of the deféndant to remove it, she would have the right to presume such had been done, if you find a reasonable time has elapsed so that in the exercise of ordinary care and diligence on the part of the defendant they should have discovered the obstruction and removed the same,” should not have been given, because that portion relating’ to Mrs. Osier’s right to rely upon any presumution that the walk was safe for travel and that the use of the words “several weeks before” and that “this knowledge is not the gist of the matter, but the real gist of the matter is her present knowledge,” was a comment upon the evidence and tended to leave the impression with the jury that she had no knowledge except such as was obtained a considerable time before and that such knowledge was of no importance. This instruction is materially different from the one given in the prior case and which was held to be erroneous in that the former instruction absolutely ignored the element of knowledge and stated a rule of law not applicable to the facts and practically negatived the question of contributory negligence and invaded the jury’s province to pass thereon. The instruction hereinafter stating such a rule further instructed the jury that if they found that, at the time of the injury Mrs. Osier knew the obstruction *796 was there then the presumption as stated above would not apply. The fourth instruction given was to the effect that the fact that the plaintiff knew of the alleged dangerous condition of the street at another time would not prevent her from recovering if she acted as a reasonably prudent person would in traveling the street, and the seventh instruction was that if she had such previous knowledge it was her duty to keep such dangerous condition in mind, unless her failure to keep it in mind was due to some cause or condition which distracted her attention or prevented her from seeing the box, and clearly contained the element of her former knowledge and placed the question of contributory negligence before the jury. Knowledge of the unsafe condition of a street, and whether it was present knowledge when the accident occurred and its weight and plaintiff’s acts compared with those of a reasonably prudent person with similar knowledge and under like circumstances are for the consideration of the jury. Knowledge of the unsafe condition of a street to be a complete defense, must be present knowledge. (McLeod v. Spokane, 26 Wash. 346, 67 Pac. 74.) As stated in City of Buffalo v. McAfee, 23 Ind. App. 112, 53 N. E. 1058, which was similar to the ease at bar, and where a person had passed over the defect about a month before the accident the court said: “The question was not whether she had at some prior time known of it, but whether she knew of it at the time of the injury.” (Symonds v. City of Baraboo, 93 Wis. 40, 57 Am. St. 895, 67 N. W. 40; Muir v. City of Pocatello, 36 Ida. 532, 212 Pac. 345.) A person although having previous knowledge of the dangerous situation, but not having presently in mind the existence of the defect is not guilty of contributory negligence. (Wright v. City of St. Cloud, 54 Minn. 94, 55 N. W. 819.) , The defendant’s duty in the premises was substantially as stated in the latter part of the instruction. *797 “The same rule would apply when, after erections are properly made, the company negligently suffers them to fall down or to be out of repair, or to remain so after reasonable notice. It was as much its duty safely to maintain as it was safely to erect. Whether the unsafe condition was or was not, in its inception, the result of a cause for which the company was responsible, is only material in determining when the negligence began, and in what it consisted. If it was the result of negligent construction, this would constitute the negligence. On the other hand, if, as in this case, the unsafe condition was the result of a cause for which the company was not responsible, the negligence consists, not in the fact that the wires 'fell into the street, but in the fact that they were allowed to remain there after reasonable notice to the company, and the lapse of sufficient time within which to remove them. The duty of the company in such a case, it seems to us, is not at all dependent upon the nature of the cause which produced the unsafe condition. So far as the duty of removing the wires from the street was concerned, it was immaterial whether their fall was the result of natural decay, of a malicious and unlawful act of some third person, of some extraordinary force of nature, or, as in this case, of the freezing of water thrown upon the cross-bars by the fire department.” (Nichols v. City of Minneapolis, 33 Minn. 430, 53 Am. Rep. 56, 23 N. W. 868.) “The duty of keeping streets in repair includes the duty to keep them free from dangerous obstruction, and a corporation is liable for negligence in allowing such obstructions to continue after notice thereof may be imputed to it.” (Town of Monticello v. Kennard, 7 Ind. App. 135, 34 N. W. 454; City of Grand Forks v. Paulsness, 19 N. D. 293, 123 N. W. 878, 40 L. R. A., N. S., 1158.) While this instruction might have been better framed and we do not approve its form, when considered with the other instructions it was not prejudicial to appellant. Appellant complains of the following instruction: *798 “You are instructed as a matter of law, that the fact that the plaintiff knew of the alleged dangerous condition of this street at another time would not prevent her from recovering if she acted as a reasonably prudent person would in traveling over this street at the time the accident occurred. If you find that the plaintiff, Delvina Osier, at the time she suffered the injuries complained of, was acting as a reasonably prudent person would have acted under like circumstances, then there was no neglect on her part that would defeat a recovery by her,” for the reason that it permits the jury to disregard the duty that was imposed upon her, due to her prior knowledge of the alleged dangerous obstruction in the path. The seventh instruction given was as follows: “The jury is instructed that if at and prior to the alleged accident, Mrs. Osier knew that the service box was in the path and extended above the surface of the earth and there was danger of her being injured if she stumbled over it that it was her duty to keep such dangerous condition in mind and use proper care to avoid it, and if she failed so to do she cannot recover unless you should find that her failure was due to some cause or condition which distracted her attention or prevented her from seeing the box. ’ ’ This instruction informed the jury that there was a higher degree of care resting upon Mrs. Osier if she had knowledge of the dangerous condition of the box than otherwise, and the former instruction further instructed the jury that Mrs. Osier must have been acting as a reasonably prudent person would have acted under like circumstances in order to be free from neglect on her part. “Where a person knew prior to an injury received, of a dangerous condition in a street, such knowledge would not preclude him from a recovery for an injury received by accident caused by such dangerous condition, provided he used reasonable diligence to avoid injury; but should injury result from his carelessness, he should not recover,” *799 (Giffen v. City of Lewiston, 6 Ida. 231, 55 Pac. 545; Muir v. City of Pocatello, supra.) “The mere fact that the appellant was aware of the defective condition of the sidewalk when the accident occurred is not per se conclusive of negligence on his part, though it was competent evidence on the question of contributory negligence.....All that the law required was the exercise of such care and caution as a person of ordinary prudence would use under similar circumstances.” (McQuillin v. Seattle, 10 Wash. 464, 45 Am. St. 799, 38 Pac. 1119; Stock v. City of Tacoma, 53 Wash. 226, 101 Pac. 830, and cases cited.) This instruction was in accord with Muir v. City of Pocatello, supra, at page 543, and therefore was not erroneous. Appellant contends that the instruction with reference to the defense of contributory negligence to the effect that defendant could not prevail on that issue “unless it appears affirmatively from the evidence that has been introduced that the plaintiff, Mrs. Osier, was herself guilty of negligence which was approximate cause of the injury complained of,” was improper because the word “affirmatively” was used and for the further reason that “it is not the law that in order to sustain this defense it must appear that the negligence of the plaintiff was the proximate cause of the injuries.” Contributory negligence is a matter of defense and the burden of proving it rests upon the defendant. (Pilmer v. Boise Traction Co., 14 Ida. 327, 125 Am. St. 161, 94 Pac. 432, 15 L. R. A., N. S., 254; Muir v. City of Pocatello, supra; Osier v. Consumers Co., supra.) The use of the word “affirmatively” did no more than place the burden of proving contributory negligence upon the defendant where it properly belonged. The fact that the evidence adduced by plaintiff might show contributory negligence would not be affected by the use of this word as it still must affirmatively appear that Mrs. Osier was guilty of negligence. The jury could not have been misled by this instruction since it stated that it must appear “from the evidence that has *800 been introduced,” and as no evidence was introduced by defendant it included that introduced by plaintiff. Appellant contends that under this instruction the jury might have said that Mrs. Osier’s injuries were not proximately caused by her negligence, and at the same time have found that notwithstanding appellant was negligent, that Mrs. Osier’s negligence proximately contributed to her injuries. In other words, that this instruction would lead the jury to believe that contributory negligence to defeat recovery must be the sole proximate cause of the injury. The instruction was that it must appear that Mrs. Osier, “was herself guilty of negligence which was approximate cause of the injury complained of.” It is quite obvious that a clerical error was made and that the instruction as dictated was that it must appear that the negligence was “a proximate cause” rather than “was approximate cause.” “Proximate” and approximate are used as interchangeable and synonymous terms. New Standard Dictionary; Webster’s International Dictionary. The instruction as given was not definite, not containing “the” or “the sole” or any words of like effect; thus it must be concluded that any negligence which was a proximate cause of the injury would be contributory negligence and therefore is not subject to appellant’s criticism; furthermore, this court has approved instructions of like effect. “To prevent a recovery by reason of contributory negligence the person injured must have been guilty of a want of ordinary care and that such want of ordinary care was a proximate cause of the injury.” (Rippetoe v. Feely, 20 Ida. 619, 119 Pac. 465; Goure v. Storey, 17 Ida. 352, 105 Pac. 794; Pilmer v. Boise Traction Co., supra.) The instruction requested by appellant that if the jury should find that Mrs. Osier was herself negligent as defined in the instructions, then she would not be entitled to a verdict in her favor, even though they should find that defendant was negligent as charged, was properly refused, since it contained no statement to the effect that such negligence *801 must be a proximate cause of the injury and the instruction above referred to fully covered this instruction. Damages were given in the sum of $8,000 and appellant contends that they are so excessive as to show they were given under passion or prejudice. It was shown that Mrs. Osier before the accident was a strong and energetic woman and did all her own housework, and that since the accident she was of a nervous disposition, had lost some 30 or 40 pounds in weight, and was unable to do her work, dress herself or use her right arm in any useful manner, and that it was necessary for her to have some one take care of her and do all her work. Dr. C. F. Eikenberry, a specialist in bone and joint surgery testified that Mrs. Osier’s recovery was possible but not probable. The medical expenses amounted to $238.50. The amount awarded would yield at six per cent approximately $480 per year. There is no absolute method of determining what the damages should be for an accident of this kind and what the damages should be is a question for the jury. In Bisinger v. Sacramento Lodge, 187 Cal. 578, 203 Pac. 768, a woman suffered a compound fracture of her left leg, which she claimed would result in a permanent injury. The defendant contended that she would recover all but ten per cent of the use of the limb. The jury’s verdict for $30,975 was reduced by the trial court to $28,191.91, and sustained by the supreme court, saying: “The jury were at liberty to accept the-testimony most favorable to the plaintiff, and evidently did so.” “We now take occasion to say that verdicts will not be interfered with by this Court on account of being excessive unless the facts are such that the excess can be determined as a matter of law or that the verdict is so excessive as to be shocking to one’s conscience and to clearly indicate passion, prejudice or corruption on the part of the jury..... “Verdicts rendered 10, 15, or 20 years ago are of little help in determining what amount is now excessive in a personal injury case. The present cost of living must be con *802 sidered, and the diminished purchasing power of the dollar must be taken into consideration when estimating damages.” (McAfee v. Ogden Union Ry. & D. Co., 62 Utah, 115, 218 Pac. 98.) In the case at bar Mrs. Osier was fifty-six years old. In Keim v. Gilmore & Pittsburg R. R. Co., 23 Ida. 511, 131 Pac. 656, a man seventy-six years old with a life expectancy of six years was permanently injured and maimed and remained a permanent sufferer and a judgment of $9,000 was sustained as not excessive. In Brayman v. Russell & Pugh Lumber Co., 31 Ida. 140, 169 Pac. 932, this court sustained a verdict of $5,000 for a broken arm resulting in it being shortened and partly paralyzed. In Stanward v. Yellow Taxi-Cab Co. (Cal. App.), 241 Pac. 902, $8,000 was sustained for a broken leg. In St. Mary’s Academy v. Soloman, 77 Colo. 463, 42 A. L. R. 964, 238 Pac. 22, $6,000 was sustained for broken ribs and a cut on the head and hand. (Hook v. Atchison, Topeka & S. F. Ry. Co., 116 Kan. 556, 227 Pac. 531, $8,000 for a broken arm. Service v. Wolter, 120 Kan. 141, 242 Pac. 464, $6,374.87 for an injury to an arm and hand. Darling v. Pacific Elec. Co., 197 Cal. 702, 242 Pac. 703, $15,000 for the loss of a foot by a woman sixty-seven years old. Kelley v. Hodge Trans. System, 197 Cal. 598, 242 Pac. 76, $15,000 for permanent sears. Konig v. Nevada, Cal. and Oregon Ry. Co., 36 Nev. 181, 135 Pac. 141, $10,000 for the loss of the use of one arm and other ailments. Lynch v. Pacific Elec. Co., 24 Cal. App. 108, 140 Pac. 298, a broken leg and paralysis of the left arm, $15,750. Kusnir v. Pressed Steel Car. Co., 201 Fed. 146, $8,500 for serious injuries to the arm. Baird v. New York Cent. & H. R. R., 64 App. Div. 14, 71 N. Y. Supp. 734, $11,000 for injury to the right arm. O’Keefe v. Eighth Ave. B. Co., 33 App. Div. 324, 53 N. Y. Supp. 940, $8,000' for the loss of an arm. Ridenhour v. K. C. Cable Ry. Co., 102 Mo. 270, 13 S. W. 889, 14 S. W. 760, nervous injury to the arm, $8,500. Ulrickson v. Soderberg, 69 Wash. 347, 124 Pac. 909, $6,000 for broken forearm and dislocation of shoulder.) *803 Before a verdict can be set aside on the ground of excessive damages appearing to have been given under the influence of passion or prejudice, such fact must be made clearly to appear. (Short v. Boise Valley Traction Co., 38 Ida. 593, 225 Pac. 398; Nelson v. Johnson, 41 Ida. 697, 243 Pac. 647.) There is no such showing herein and therefore the jury’s award will not be disturbed. Judgment affirmed. Costs awarded to respondents. "William " A. Lee, C. J., and Wm. E. Lee, Budge and Taylor, JJ., concur.