Morehouse v. City of Dixon

Lacy, J: This was a suit brought by the plaintiff in error against the defendant in error to recover damages occasioned by a fall on a sidewalk in the city of Dixon, June 20, 1884, by reason of which one of his legs was injured and had to be amputated below the knee. The charge in the declaration is that the sidewalk by reason of the negligence of the defendant in error was allowed to become defective, there being large unguarded spaces between the planks, and that the plaintiff in error, while exercising due care, stumbled, slipped and fell and received severe injuries, suffering the permanent loss of his right foot. It is alleged in the second count that the walk was defective and that the city by exercising reasonable care could have known it; and in the third count that the city had notice of the defect. The allegation is in all of the counts as to the injury. The damages were laid at $6,000. Upon issue being joined the case was tried before a jury, the trial resulting in a verdict for the defendant in error, and upon motion for a new trial being overruled, judgment was rendered against the plaintiff in error for costs. It is assigned for error that the court gave defendant in error the first, second and third, fifth, eighth and twelfth instructions in favor of the defendant in error, and in refusing the plaintiff in error’s eleventh instruction. We have examined the instructions fully and regard the second, fifth and twelfth of defendant in error’s instructions as proper. The first and third we think very improper and erroneous. The.first and third instructions were as follows: First. “You are instructed that a person has no right to knowingly expose himself to danger and then recover for an injury which he might have avoided by the exercise of reasonable care and caution, and if you believe from the evidence that the plaintiff knew of the defects and obstructions in the sidewalk, and that in passing along snch walk he could have avoided passing over such defects and obstructions by taking a short circuit around them, you have to consider his failure to make such a circuit in determining whether the plaintiff exercised due and reasonable care and caution.” Third. “ You are instructed that while all persons are required by law to exercise reasonable care and caution in walking on the sidewalks of a city, still, in determining what constitutes snch care and caution, any defect in the parties’ limbs or feet, interfering with their free and natural use (if proven), should be taken into account; and in this case, if you believe from the evidence that the plaintiff at the time of the alleged injury was so crippled as to render him more liable than a person not so crippled to stub his toe against projections above the main surface of the walk, or to render it more difficult for him than a person not so crippled to save himself from falling, in case he should stub his toe, or should step into a crack in the walk, then reasonable care would require of him that he move more cautiously and with greater care on the sidewalks than if he were not so crippled.” The first is erroneous because it calls the attention of the jury to a fact and gives it undue prominence. The mere fact of the knowledge of the defect on the part of the defendant in error and the further fact of his failure to go around the spot where the injury occurred is required by the instruction to be taken into account in determining the question of care on the part of the defendant in error. No other facts or circumstances are mentioned. This was undoubtedly a question for the jury to consider, but not the only evidence, and it should not have been singled out as though it were the only question in the case. The third instruction is erroneous because it calls the jury’s attention especially to supposed facts and because there is no evidence on which to base it. The injury was not caused by the defective foot, nor was there any evidence tending to show that it was negligence to go onto the walk with such a foot as the plaintiff in error had, any more than with a well foot. The instruction ignores the question of knowledge on the part of the defendant in error of any defect in the sidewalk, and is suggestive and argumentative throughout. We will now notice the objection to the refusal of the court to give the eleventh of plaintiff in error’s refused instructions. It was to the effect that the jury had no right to draw any inference or conclusion unfavorable to the plaintiff from the fact that the said boot or shoe worn by defendant in error at the time of the accident was not before the jury as evidence in the case, and that the jury should disregard such fact and all arguments or statements concerning the same. We think the court should have given this instruction. Under the evidence in this case the plaintiff in error was under no obligations to produce the boot or shoe in evidence, and although this evidence may have come out on the trial, it was not proper for the jury to draw any inference unfavorable to the plaintiff in error from it. The instructions should have been given for the purpose of excluding from the minds of the jury such improper evidence or the effect of it. We have examined the evidence in the case and feel satisfied that the evidence would have sustained a verdict in favor of the plaintiff in error. We regard, therefore, the giving of the wrongful instructions for the defendant in error and the refusal of the rightful one for the plaintiff in error as material, and such action by the court may have unfavorably influenced the verdict of the jury against the plaintiff in error. For these reasons the judgment of the court below is reversed and the cause remanded. Ileversed and remanded.