Gagnier v. City of Fargo

Morgan, J. The plaintiff seeks to recover damages claimed to>, have been received by him while riding on the defendant’s sidewalk on a bicycle, which damages are claimed to- have been caused by the [222] defendant’s negligence in not keeping sáid sidewalk in proper .condition. The complaint states the cause of action, after describing the defects in the sidewalk, in the following language: “That on the 18th day of October, 1889, the plaintiff was lawfully and, rightfully riding over and upon said sidewalk on a bicycle, and that when he had arrived at a point in the same where said hole and loose bricks were located 'as aforesaid, and without fault or negligence on his part, his said bicycle was then and there overturned by a loose brick, and he was precipitated with great- violence to :the ground, whereby he received great injuries,” etc. The defend.ant’s answer was a general denial, with an allegation that the injury was occasioned by the contributory negligence of the plaintiff. The plaintiff recovered a verdict for $400. Defendant gave notice -of intention to move for a new trial upon the following grounds: (1) Insufficiency of the evidence to justify the verdict;' (2) that the verdict is against the law of the case; (3) errors of law occurring . at the trial and duly excepted to by the defendant. A motion for a new trial was made, based upon a settled statement of the case and upon the grounds stated in the notice of intention. The motion for .a new trial was denied, and this appeal from the judgment perfected. This case was in this court on a former appeal, and is reported in 11 N. D. 73, 88 N. W. 1030. On that appeal this court ordered a new trial because of erroneous instructions given to the jury, and the rule was then followed that a municipality owes no greater duty to riders of bicycles, when allowed to ride on sidewalks, than to keep the same in proper condition, for safe travel by pedestrians. On this appeal the assignments of error pertain to the instructions given to the jury solely. There is an assignment of error on the refusal of the court to grant a new trial. But the grounds thereof refer solely to the instructions claimed to be erroneous. There is no specification in the record at all as to the particulars wherein the evidence is insufficient to justify the verdict. No request for instructions by the defendant was refused. Hence consideration of the evidence to determine whether it sustains the verdict, or whether the plaintiff was guilty of contributory negligence, or assumed all risks with knowledge .of the condition of the walk, is not permitted under the statute; and error can be claimed on the giving of instructions only, as none is specified or assigned. Section 5467, Rev. Codes 1899; Pickert v. Rugg, 1 N. D. 230, 46 N. W. 446; National Cash Register Co. v. Pfister, 5 S. D. 143, 58 N. W. 270. [223] The first assignment on which appellant relies is in the giving of this instruction: “I charge you, gentlemen of the jury, that prior knowledge of a defect in a sidewalk by one who is injured is not necessarily proof of contributory negligence; and if you believe from the evidence in this case that the plaintiff had knowledge that the sidewalk was out of repair and even dangerous, yet because of that fact alone he would not, therefore, be bound to forego travel on such sidewalk.” The objection to this instruction is stated by the .appellant’s attorney as follows: “Under the rule laid down in the case of Collins v. Janesville (Wis.) 83 N. W, 695, the instruction practically eliminated from the jury any consideration of the knowledge that the plaintiff possessed with reference to the point of injury, and consequently is destructive of that rule which required the plaintiff to exercise ordinary care to prevent an injury.” Immediately preceding and next before the instruction quoted above the court gave this instruction: “You are to consider all the facts, including the condition of the sidewalk, the facts which were within the", knowledge'of the plaintiff in reference thereto, the character and nature of the defect in the walk which was the direct cause •of the injury, the fact that the plaintiff was passing over the walk on a bicycle, and the manner in which he sought to pass, and then determine whether, under all the circumstances, he was in the exercise of such care and prudence as would have been used and exercised by a man of ordinary care and prudence under the same circumstances and conditions.” Immediately following the instruction objected to, the court gave this instruction: “The real fact'for you to ascertain as bearing upon the question of contributory negligence if any you so find, is this: Did the plaintiff, by his own fault or negligence, contribute directly to produce the injury? Could he, by ordinary prudence, have prevented the injury? And if you find that he was guilty of contributory negligence, then he cannot recover, and your verdict must be for the defendant.” Reading the charge altogether, as given, it is clear that the objection urged to the instruction was fully covered in other portions of the charge. The jury was told in plain language that the plaintiff must exercise such care as an ordinarily prudent- and careful person would have exercised under like circumstances, which circumstances included plaintiff’s knowledge of the condition of the walk at the time. As the only defect claimed’ against the correctness of the instruction was fully supplied in other portions of the charge, we do not deem [224] it necessary to say anything further on this assignment. It is too-well understood to need argument or citation of authorities that an omission in stating the law in a particular instruction is not prejudicial error if covered by other portions of the charge. No-prejudice can follow such an omission when supplied elsewhere in. the charge. The next assignment urged arises out of the giving of an instruction as to the elements to be considered in assessing the damages. The jury was instructed to take into consideration the plaintiff’s bodily injuries and “his physical pain and mental suffering-arising from such injury.” The objection urged against the instruction is that mental suffering should not have been included as an element of damage in the case. Appellant’s attorney urges that, “there is no claim that the plaintiff suffered any mental impairment' which injured his mental power.” Neither does the complaint' allege, nor the evidence show expressly,, that the plaintiff suffered mentally, nor that there was any impairment of the mental powers-by reason of the injury. The complaint and the evidence show serious physical injury, consisting of breaking two ribs, injuring his arm and shoulder, and other injuries, which were of such character that he was unable to lie in bed, and was compelled to sit in, a chair for 170 hours. Such evidence clearly shows physical injuries-from which physical pain and mental suffering necessarily follow. Mental suffering is the natural and necessary result of physical injury, and equally as much so as physical pain. The physical injury being proved, pain and mental suffering are presumed. The physical pain and mental suffering need not be pleaded nor specially proved, but are taken to follow as a necessary consequence of the physical injury, and to be inseparably connected therewith. There is great uniformity in the authorities on this question. Among those-so holding are the following, which could be added to largely without difficulty: 1 Sutherland on Dam. (2d Ed.) sections 419-421, Fry et al. v. Hillan (Tex. Civ. App.) 37 S. W. 359; Gronan v. Kukkuck, 59 Iowa 18, 12 N. W. 748; C., B. & Q. Ry. v. Warner, 108 Ill. 538; Brown v. Hannibal & St. J. Ry., 99 Mo. 310, 12 S. W. 655 ; McCoy v. Milwaukee St. Ry. Co., 88 Wis. 56, 59 N. W. 453. Defendant’s attorney relies upon Comaskey v. N. P. Ry. Co., 3 N. D. 276, 55 N. W. 732, as supporting his contention. We do not so understand that-case. That case lays down the rule that, before damages on account of the “impairment of the mental powers” become allowable, they [225] must be specially pleaded and pfoven. The syllabus expressly states this as the question decided, and the opinion does not lay down the rule that damages on account of “mental suffering”, must be specially pleaded and proved. In that case it was said: “It is conceded that mental suffering is a proper element of damages, and that the impairment of mental faculties is also a proper element when claimed and proven; but it is neither claimed nor proven in. this case.” We think it clear that the damages that must be “claimed and proved” are expressed in that case as those growing out of the impairment of the mental powers, and not those growing out of mental suffering. The case is not an authority against the doctrine followed by the trial court in this case that damages growing out of a physical injury causing mental suffering may be recovered without specially pleading or proving the physical pain and mental suffering. As stated in that case, there is a clear distinction between “mental suffering” and “impairment of the mental faculties.” This disposes of all the assignments. The judgment is affirmed. All concur.