McLean v. City of Lewiston

STTLLIYAN, J. — This action was brought by the respondents, who are husband and wife, for damages to the wife by reason of a defective sidewalk and of a cellar door opening therein. It is alleged that while said respondent, without fault or negligence on her part, was walking along said sidewalk, she was violently precipitated through said cellar door into the cellar underneath; that she was in an extremely delicate condition, being pregnant with child; was greatly bruised and injured, and received great bodily injury, and was made sick and sore, and received such injuries as to render her an invalid and a cripple. A demurrer was interposed to the complaint and overruled. Thereupon the appellant answered, denying all of the material allegations of the complaint except the corporate existence of appellant. The answer also averred contributory negligence on the part of respondents. A jury trial was had, — 482 — and resulted in a verdict of $12,000 for respondents, on which judgment was entered. A motion for a new trial was denied. This appeal is from the judgment and the order denying the motion for a new trial. Seventy-eight errors are assigned as grounds for a reversal of said judgment. The first is that the court erred in overruling the demurrer to the complaint. It is contended that this action was brought under the following provision of the city charter, to wit: “The city of Lewiston shall be liable to anyone for any loss or injury to person or property growing out of any casualty or accident happening to any such person or property on account of the condition of any street or any public ground therein.” It is contended that at common law an action for damages by a private individual against a municipal corporation for an injury sustained by a defect in a highway could not be maintained, and for that reason the respondents are held to the express terms of said quoted provision of the city charter; and that, as said provision makes no mention of the sidewalks, the complaint fails to state a cause of action. We cannot agree with this contention. This court held in Giffen v. City of Lewiston, 6 Idaho, 231, 55 Pac. 545, that the words “street or public grounds,” as used in the above-quoted provision of the city charter, were broad enough to cover and include sidewalks; and, after considering the very able argument of counsel for appellant, we are not inclined to reverse said decision on that point. After a most careful consideration of all of the grounds of said demurrer, we cannot say that the court erred in overruling it. It is true that the complaint is not as specific as some pleaders would have made it, but we think the ultimate facts therein stated constitute a cause of action. In this class of eases the pleader must state all facts necessary to inform the defendant of all acts or omissions that are charged against the defendant, so as to enable him to make a full and complete defense thereto. It is an established rule of pleading that probative facts need not be pleaded. On an examination of the answer and the proceedings at the trial we find that the attorneys for the appellant did all that — 483 — could be done to protect the rights of the city, and were in no way misled because the allegations in the complaint were not more specific. This disposes of the second assignment of error. Assignments Nos. 3 to 16, inclusive, and 26 to 29, inclusive, relate to the action of the court in overruling appellant’s objection to questions propounded to witnesses J. A. McLean and Dr. Brown by counsel for respondents. It is contended that said questions are leading and suggestive, and have for their object and purpose the proving of permanent injuries to respondent Mrs. McLean; and it is earnestly contended that under the allegations of the complaint testimony of permanent -injury was inadmissible, for the reason that such injury is not alleged in the complaint. On the point made as to said questions being leading and suggestive, we would say that under proper circumstances and conditions leading questions are permissible — questions introductory in character; questions to a hostile witness; and cases where it is shown that the witness does not comprehend the import of the question propounded, or is embarrassed. There are many exceptions to the general rule on this subject. And as the permission to ask such questions is largely in the discretion of the court, such discretion will not be disturbed, unless an abuse of it is shown, which is not done in this case. And on the other point, to wit, that the allegation of permanent injury in the complaint is not sufficient to warrant the admission of evidence thereof, we are of the opinion that such allegation is sufficient. The main allegation on that issue is that respondent Mrs. McLean received such great bodily injuries as to render her an invalid and a cripple. That allegation, in connection with other allegations of injury showing permanent injury, is sufficient. The evidence called out by the questions last above referred to was as to the health of respondent Mrs. McLean prior to and after injury; as to her ability to nurse her child after the injury; as to her complaints 'of ill-health before and after the accident; as to her disability and lameness; in regard to the rupture of respondent; as to her physical condition during the birth of her child; as to her ability to bear children after the injury; as to effect of injuries on her general — 484 — health; and as to whether, in the opinion of the physician, she was permanently injured for life — all of which evidence was admissible under the issues made by the pleadings. Assignments 33 to 36 relate to a long hypothetical question propounded to medical witnesses of respondents. We have carefully examined said question, and, while we think it is more specific than was necessary, it is based on the facts shown by the evidence. Dr. Luhn’s answer to said question was as follows: “I believe that a woman — such a one as described in the question — could not continue to be a healthy woman, and would probably be a wreck, a physical wreck.” Other assignments of error go to the proof of the permanency of said injury, and the points therein involved are hereinabove disposed of. Assignment No. 40 goes to the right of counsel for respondents, on cross-examination of a medical witness, to make out his case by such cross-examination. It appears that Dr. Shaff was called as a medical expert on the part of the city, and on cross-examination the hypothetical question above referred to was put to Mm. That question had been answered by the medical experts of respondents, and the answer of this witness corroborated the evidence of respondents’ experts and served to strengthen it. But respondents did not rely on that cross-examination to make out their case. Under the law a liberal range is allowed in the cross-examination of expert witnesses, and we do not think the court erred in said matter. This applies also to assignment of error 43, in regard to the examination of the witness Phillips. . Objection was made to cross-examination of appellant’s witnesses called to impeach one of respondents’ witnesses, and on a careful examination of the interrogatories propounded we are unable to say that permitting such examination was error. Great latitude is allowed in cross-examination of impeaching witnesses. Many other errors are assigned to the action of the court in the admission and rejection of evidence, which we have considered, and find no substantial error in them. — 485 — The leading counsel for respondents, in his argument to the jury, referred to one of the counsel for appellant, as we construe it, in a joking way, and counsel for appellant requested the court to require counsel to desist therefrom, and the court refused to do so, and stated, in the presence of the jury, that it would not interfere, and that counsel had a right to argue his cause from his own theory. While we do not consider such remarks proper, we do not think the refusal of the court to order counsel to desist from making them would warrant granting a new trial. It is contended that instructions 19 and 20 given by the court on its own motion are objectionable on the ground that they do not give the jury any criterion on which to base the amount of damages to be awarded for the injury complained of, but license the jury to go outside of the testimony, and rely upon their judgment in other matters and business affairs in arriving at the amount of damages. Said instructions are as follows: “19. The jury are instructed that a party suing for an injury received can only recover such damages as naturally flow from, and are the immediate results of, the acts complained of. The jury should be governed solely by the evidence introduced before them, and they have no right to indulge in conjectures and speculations not supported by the evidence. If, from the evidence in the case, and under the instructions of the court, the jury shall find the issues for the plaintiffs, and that the plaintiffs have sustained damages, as charged in the complaint, then, in order to enable the jury to estimate the amount of such damages, it is not necessary that any witness should have expressed an opinion as to the amount of such damage; but the jury may themselves make such estimate from the fa,ets and circumstances in proof, and by considering them in connection with their own knowledge, observation, and experience in the business affairs of life. 20. If the jury believe from the evidence that the plaintiff Miriam W. McLean was injured by reason of the defendant negligently failing to keep its sidewalk in reasonably good repair, or negligently allowing the same to remain in an unsafe condition, as explained in these instruc — 486 — tions, and without fault on her part, and that she has sustained damage, then the jury have a right to find for her such an amount of damages as the jury believe from the evidence will compensate her for the personal injury so received, and also for the pain and suffering undergone by her, and any permanent injury, if any such has been proved, not exceeding the amount claimed in the complaint.” The last clause of said nineteenth instruction is objectionable, but, taking said instructions together, they correctly instruct the jury that they have a right to find for the respondent such an amount of damages as they believe from the evidence would compensate her for the personal injury so received, and also for the pain and suffering undergone, and for any permanent injury, if any such had been proved. In this character of eases the law does not prescribe any fixed or definite rule of damage, but, from necessity, leaves their assessment to the good, sound, and unbiased judgment of the jury; and their verdict will not be disturbed unless the amount is so large as to suggest passion, prejudice, or corruption on the part of the jury. (Aldrich v. Palmer, 24 Cal. 513; Horn v. Canal Co., 7 Idaho, 640, 65 Pac. 145.) The giving of other instructions is assigned as error, all of which we have carefully examined, and find no merits in such assignments, as they state the law of this ease based on the facts as established by the evidence. Counsel for appellant requested a number of instructions, one of which the court gave, and refused to give the others. One of said instructions the court gave, and is as follows: “The court instructs the jury in this action the burden is upon the plaintiffs to prove by a preponderance of the evidence that plaintiff Miriam W. McLean received the fall alleged; that her person was injured by said fall; that at, up to, and just prior to said fall said cellar doors were imperfectly or insecurely fastened or secured; or that said sidewalk at that point was dangerous or unsafe for persons to walk over or upon; that said Miriam W. McLean, at the time of or before said accident, did not know of such dangerous or unsafe condition of said cellar doors and cellar thereunder, or unsafe side — 487 — walk, or if, knowing of such defect or dangerous condition of said cellar door or sidewalk, she used diligence or care in stepping upon or walking over or across the same; that the defendant had actual knowledge of such defect or dangerous or unsafe condition of said cellar doors or sidewalk, or that such defect or dangerous or unsafe condition of said cellar doors or sidewalk existed for such length of time before the accident that the defendant, if exercising proper care or diligence, would have known of it; and you are further instructed that, if plaintiffs fail to prove any one of said facts, they cannot recover in the action, and your verdict should be for the defendant.” That instruction, with those given by the court, cover nearly all of the ground of those requested by appellant, and which the court refused to give, and all that were proper to he given of said instructions. There is nothing in the record to indicate that the verdict was rendered through prejudice or passion, and under all of the evidence in the ease we do not think that the damages awarded are excessive. In this case it is shown that a strong, healthy, young woman has become an invalid and cripple, unfitted for marital or other duties of a wife, and we are not inclined to disturb the judgment on account of excessive damages. The judgment is affirmed, with costs in favor of respondents. Quarles, ,C. J., and Stockslager, J., concur.