Hall v. Incorporated Town

Ejote, J. [700] I. This case has once ■ before been in this court, and is reported in 90 Iowa, 585 (58 N. W. Rep. 881). It is insisted that plaintiff’s negligence [701] contributed to produce tbe injury of which she complains. It is said that she was possessed of such knowledge touching the excavation, as should have warned her to have taken another way to her destination, and thus have avoided the danger. The evidence does not show that the plaintiff had any knowledge whatever of the existence of the excavation into which she fell. True, it appears that she knew that the town was engaged in putting, in water. She had seen some of the ditches, and knew they were digging such ditches in the business part of the town; she had seen one of these ditches on the day of the accident. She could have taken another route, just as direct, to reach the place she was going to. She was not, under such circumstances, negligent in attempting to go over the crossing, having no knowledge of the existence of the excavation. She testifies that it was so dark she could not see the edges of the crossing; that there was no light at or near the excavation; and there is no claim that there were barriers to keep people from falling into it. If her testimony be taken as true, and it is supported, she was in the exercise of due care. Counsel’s argument is based upon the claim that .when one injured has knowledge of the danger he must use such knowledge so as to avoid injury if possible. Such is no doubt the law, but the facts of this case do not bring it within that rule. If the evidence,. to the effect that there was no light at or near the excavation is to be believed, then it is clear that, having no knowledge of the excavation,- and no light by means of which she might see her danger, and there being nothing to prevent her stepping into the hole, and she being otherwise in the exercise of due care, she is not chargeable with negligence in not discovering and avoiding the excavation. Her knowledge that the town was laying water mains does not charge her with notice of this particular excavation. Even if she [702] did know of the danger, she would not be negligent in attempting to go over the crossing, if she exercised due care in so doing. Hers was not a case of knowingly and consciously incurring danger,' hence the cases relied upon are not applicable. Counsel also argue that the only duty the town owed to plaintiff was to keep its walks and crossings in a reasonably safe condition. He insists that if the crossing itself was in fact good and sufficient, the town was not liable for an injury received by one when off of said crossing. The following cases are cited: O’Laughlin v. City of Dubuque, 42 Iowa, 541; Alline v. City of Le Mars, 71 Iowa, 654 (33 N. W. Rep. 160); Ely v. City of Des Moines, 86 Iowa, 55 (52 N. W. Rep. 475). These cases, in their facts, are all different from the one at bar. In the Dubuque Case, the person was injured while crossing the street, not on a regular crossing, and it is said: “Sidewalks and crosswalks alone are constructed for foot travelers, and he who, without some good and sufficient reason, walks elsewhere and is injured, should not be permitted to complain that he has been injured through the fault and negligence of the city.” In Alline’s Case the injured party was able to see the limits of the walk, and voluntarily, and without' necessity therefor, stepped from the walk without knowing she could safely do so. Ely’s Case was one where the pedestrian on a city street unnecessarily left the street, went into an alley, and fell into an area way. None of these cases are controlling in the one under consideration. In this case, the crossing was being made on the walk provided by the town, and, owing to the darkness, plaintiff inadvertently stepped off of the crossing into an unguarded, and, as some of the evidence shows, unlighted, excavation, which came up to the very edge of the crossing. The jury must have found that plaintiff was not [703] negligent, and we cannot disturb their finding in that respect. 8 II. Counsel for appellant insist that the evidence shows that the defendant was not negligent. The argument is that as the defendant had a crossing which was, in and of itself, good, and inasmuch as it had a right to excavate for its water mains, and because the excavation formed no part of the crossing walk, therefore it cannot be held liable for an injury received by one who, in the exercise of due care, and unable by reason of the darkness, to discover the limits of the crossing walk, and not knowing of the excavation adjoining said walk, steps into the same. On the same theory, a city might erect a bridge over a river and erect no guard-rails to keep the pedestrians from stepping over its side and falling into the stream below. The duty imposed upon the town to keep its crossings in a reasonably safe condition for the use for which they were intended, “extends not merely to the surface of the street or walk, but to those things within its control which endanger the safety of those using the street or walk property. * * * In a statutory sense, a street or sidewalk is defective when it is not in. a reasonably safe condition for the use for which it is intended. It may be due to the presence of something which is a menace to the safety of the users of the way, as well as to insufficient construction, or the absence of needed labor or material.” Bliven v. City of Sioux City, 85 Iowa, 351 (52 N. W. Rep. 246). The real question is, is the defect complained of in the walk itself, or so near it as to endanger the persons of those properly using it. Rowell v. Williams, 29 Iowa, 210; Ross v. City of Davenport, 66 Iowa, 548 (24 N. W. Rep. 47); Duffy v. City of Dubuque, 63 Iowa, 172 (18 N. W. Rep. 900); Pittinger v. Town of Hamilton, 85 Wis. 356 (55 N. W. Rep. 423). It was, then, a question for the jury as to whether the defendant was negligent, and as there [704] was evidence tending to show such negligence, as well as evidence to the contrary, the finding of the jury in that respect should not be disturbed. 4 III. The court told the jury in the seventh division-of the charge, in substance, that if the defendant had caused a light, sufficient to apprise a person of ordinary prudence of the existence of the ditch, to be placed at .or near ,it on the evening of the accident, and before it happened, then the defendant was not guilty of negligence unless it was shown that defendant had caused said light to be removed, or had actual notice or knowledge of said removal, and had sufficient time thereafter to replace the same. It is urged that the verdict is against this instruction and against the evidence. There was much evidence tending to establish the fact that a lamp or lamps were lighted at the excavation, on the evening of the accident, and before it happened. There was evidence also to the contrary. There was much evidence showing that when the accident occurred there was no light at or near the excavation. There was an undoubted conflict touching this matter; and it cannot be said that the finding of the jury was contrary to either the instruction or the evidence. Again, if the evidence had been undisputed that the light was burning when the accident occurred, still it would be a question for the jury, under the instruction, as to whether it was a sufficient light to apprise one of the danger. [704] IV. Plaintiff called one Lemoin as a witness, and showed by him that he was mayor of the town at the time the accident happened; that the town was then engaged in laying mains for water; that the excavations were made by contractors for fhe town. Defendant afterwards called the same witness, and he testified in chief that lamps were lighted at the excavation on the night of the accident and before it happened. [705] On cross-examination he was asked if he did not, on the morning after the accident, and in the presence of plaintiff and Mrs. Safford, at the latter’s house, in a conversation there, state “that the town was negligent in not having the lights lit, as they depended on the moon, but after this they would have the lights lit.” This was objected to as “incompetent, and laying the ground for impeachment of a witness whom they have used as their own witness, and for the further reason it is on something entirely' immaterial.” The court said, “I do not understand- that a witness who is called by a party cannot be contradicted, and especially I think it is competent to ask this witness this question in view of the testimony he has given.” The defendant excepted to the ruling, and the witness answered, “I made no such statement.” To another question propounded to this witness, touching a similar conversation with Elinor Hall, the same objection was made, when plaintiff’s counsel said, “Plaintiff states that this question is not asked for the purpose of .charging any admission upon the defendant because the conversation was had with the mayor of the defendant town, but wholly for the purpose of impeachment of the witness as a witness.” The objection was overruled, and an exception taken, and the witness answered, “I have no recollection of making any such statement.” Mrs, Safford, Elinor Hall, and the plaintiff were each called by the plaintiff in rebuttal, and asked touching the conversations above referred to. In each case objection was made, and overruled, and the witnesses testified to the conversation. Appellant contends that the impeaching witness contradicted Mr. Lemoin upon a matter immaterial and irrelevant to the issue. In the second place, it is insisted that it was not competent for plaintiff to impeach her own witness. We dismiss the first [706] contention by saying that, in view of’ the statement of counsel for plaintiff, this evidence is to be treated as offered for the sole purpose, as to Lemoin, of laying the ground for impeachment, and, as to the other witnesses, of impeaching Lemoin. Was it competent and receivable for that purpose? It is no doubt a general rule that one will not be allowed to impeach or discredit his own witness. 1 Greenleaf, Evidence, section 442; Hunt v. Hoover, 34 Iowa, 79; Hall v. Railway Co., 84 Iowa, 316 (51 N. W. Rep. 150); Gardner v. Connelly, 75 Iowa, 206 (39 N. W. Rep. 650); Humble v. Shoemaker, 70 Iowa, 226 (30 N. W. Rep. 492); Clapp v. Beck, 55 Iowa, 272 (7 N. W. Rep. 587). This rule only prohibits impeachment in three ways: First, calling witnesses to impeach the general character of the witness; second, proof of prior contradictory statements by him; and, third, a contradiction of the witness by another where the only effect is to impeach, and not to give any material evidence upon any issue in the case. Becker v. Koch, 104 N. Y. 400 (10 N. E. Rep. 701); Cross v. Cross, 108 N. Y. 629 (15 N. E. Rep. 333). It is said that “whether it be competent for a party to prove that a witness whom he has called, and whose testimony is unfavorable to his cause, had stated the facts in a different manner, is a question upon which there exists some diversity of opinion.” 1 Greenleaf, Evidence, section 444. It will be observed that this is not a case where plaintiff was surprised by the testimony of the witness when examined by her counsel. When the witness was called by plaintiff, nothing was asked him relating to the fact as to whether the excavation was lighted./He was interrogated touching other matters, and then, it would seem, discharged. Afterwards defendant called him as its witness, and asked him whether there were lights at the excavation. On his cross-examination the plaintiff asked the questions heretofore set out. [707] If, when the witness was called by plaintiff, she had interrogated him regarding the lights, and he had testified that the excavation was lighted, and plaintiff had then sought to show by him that he was mistaken, and, failing so to do, had in rebuttal, put witnesses on the stand to show that he had made contrary statements, we should have a case within the general rule. If the plaintiff had not called Lemoin as a witness, there is no doubt she might have impeached or discredited his evidence regarding the lights at the excavation, which was drawn out when he testified on being called by the defendant. It could not then be claimed that she was impeaching or discrediting her own witness. When he in fact testified to the matter as to which it was sought to impeach him, he was the defendant’s witness, called by it. He had before that time been called by plaintiff, and testified as to other matters, and been virtually discharged. He was no more plaintiff’s witness as to the matter of lights than if she had never called him to the stand. Plaintiff did not call out the testimony as to which she seeks to impeach- Lemoin, but it was elicited by the defendant while Lemoin was its witness. Whatever reason there may be for the rule which prevents one from impeaching or discrediting his own witness, there is none for extending it to a case like this. Courts of high standing have refused to follow the general rule above mentioned, and hold, that by. putting a witness on the stand, one is not responsible for his credibility in such a sense that he is absolutely precluded, when surprised by adverse testimony, from showing that the witness had made statements of the facts contrary to his testimony. Selover v. Bryant, 54 Minn. 434 (56 N. W. Rep. 58); Smith v. Briscoe, 65 Md. 561 (5 Atl. Rep. 334); Johnson v. Leggett, 28 Kan. 605; State v. Sorter (Kan. Sup.) (34 Pac. Rep. 1039); Crocker v. Agenbroad, 122 Ind. 585 (24 [708] N. E. Rep. 169). So much of the doctrine announced in the above- cases as permits the witness, under such circumstances, to be impeached or discredited by adverse testimony showing that he had made statements of the facts contrary to his testimony, this court has not approved of. Hall v. Railway Co., 84 Iowa, 316 (51 N. W. Rep. 150); Smith v. Dawley, 92 Iowa, 312 (60 N. W. Rep. 625); Humble v. Shoemaker, 70 Iowa, 226 (30 N. W. Rep. 492). But see Thomas v. McDaneld, 88 Iowa, 380 (55 N. W. Rep. 499); Smith v. Utesch, 85 Iowa, 381 (52 N. W. Rep. 343). We held in Artz v. Railroad Co., 44 Iowa, 286, a case where plaintiff had called a witness, who testified to nothing of benefit to either party, and he was then dismissed, and the other party, on cross-examination, drew out evidence not proper to be given on cross-examination, that the witness must be regarded as called by the defendant, therefore, plaintiff might contradict him. So, in the case at bar, we hold, that Lemoin was the witness of the defendant, hence the court properly permitted plaintiff to interrogate him touching his former statements, and, as he denied making them, it properly permitted the plaintiff to impeach him by calling witnesses to testify that statements had been made by him which were contradictory to the facts as testified to by him. 6 V. The character of plaintiff’s injury, and its extent as to permanency, was a material question in the case. Her claim was, that by reason of the fall, “several of the ligaments of the second and third toes” were ruptured, and her ankle severely sprained; that the injury caused severe and acute pain. Several medical men testified for plaintiff that they had just measured her foot at various places/ and her leg six inches above the ankle, and found it considerably larger than the other foot. At the point above the ankle, they say the leg was smaller than the [709] other leg, at the same point. An equal number of doctors, who had just measured the injured foot at the same places, swore, for the defendant, that it was the same size as the other foot, except in the measurement of the leg above the ankle, which was one-sixteenth of an inch larger than the other leg at the same point. It will not admit of a doubt that this array of medical men were not all telling the truth. Either the injured foot and leg were, at the points where measured, the same size as was the other foot and leg at the corresponding points, or it was larger or smaller at some, or all, of said points of measurement. Now, clearly, when such skilled men differ so radically, touching a matter of mere measurement, as to which any number of men lacking in skill, but possessed of ordinary good sense, ought to substantially agree, because relating to a fact capable of exact ascertainment, it was proper to resort to the practical plan of taking these measurements in the presence of the court and j ury. Plaintiff being called to the stand by the defendant, she was interrogated as follows by its counsel: “Q. Mrs. Hall, you are the plaintiff in this action ? A. Yes, sir. Q. Are you the lady whose feet and legs were measured in the adjoining room here, just before noon to-day? A. Yes, sir. Q. Will you kindly nowremove your shoes and stockings and permit the measurement to be made here and now, in the presence of the jury, in the presence of the plaintiff’s witness, Dr. Saunders, and the defendant’s witness, Dr. Martin? Will you kindly remove them, and allow the measurements to be made now? A. Shall I, Mr. Healy? Mr. T. D. Healy: I have nothing to say. It is for the court to say. Q. Do you refuse to do so, Mrs. Hall? Mr. M. F. Healy: The witness has been examined four times since yesterday, and I think there should be some limit to this matter somewhere, but, at the same time, we do not wish to appear in the position of objecting to the [710] examination. By the Court: I think we have had enough of that; we are not going to start a measuring school here. Q.. Do you refuse to permit the examination; do you object to it? Mr. Hall (from the audience): I object to this now. Mr. O’Connell: Never mind, you are not in this .case. Mr. M. F. Healy: . Well, I rather think he is in the case, and under the circumstances, I think we ought to object to the examination being made, — a further examination at this time. By the Court: Well, this matter has gone far enough. This proposed examination and measurement will not be allowed. You may put it in the record, Mr. Beporter, that the court, of his own motion, declines to permit it. (To which the defendant excepts, both to the remarks and the ruling of the court).” The remark of the court about not starting a measuring school was not proper. Counsel for appellee says this requirement of the plaintiff that she permit these measurements to be made, was “unseemly.” We may be permitted to disagree with counsel, and to say that the request was reasonable, and, under the circumstances, it ought to have been willingly complied with. Here were medical men differing as to the measurement of this plaintiff’s foot. If the measurements were as sworn to by the physicians who testified on the part of plaintiff, it was a material fact, indicating an abnormal condition of the injured foot. By making the measurements in the presence of the jury the actual facts would be shown by the best attainable evidence, and the dbnflict between the learned doctors settled. There is nothing indelicate in the measurement of a foot, or arm, or ankle, in a proper case. It is to be observed that plaintiff offered no objection to these measurements being made. No ground of objection thereto was stated by her counsel, but the court refused to permit it to be done. This court, in Schroeder [711] v. Railroad Co., 47 Iowa, 378, said: “We are often compelled to accept approximate justice as the best that courts can do in the administration of the law; but while the law is satisfied with approximate justice when exact justice cannot be obtained, the courts should recognize no rules which stop at the first when the second is in reach. Those rules, too, which lead nearer the first should be adoped in' preference to others which end at points more remote. * * '* To our minds, the proposition is plain that a proper . examination by learned and skillful physicians and surgeons would have opened the road by which the cause could have been conducted nearer to exact justice than in any other way. The plaintiff, as it were, had under his own control testimony which would have revealed the truth more clearly than any other that could have been introduced. The cause of truth, the right ' administration of the law,demand that he should have produced it.” It was also held in that case that the power of the court was ample to enforce obedience to an order compelling the party to submit to an examination; so it was held that, as the plaintiff had the right in such a case to exhibit his injured limb to the jury in order to show the extent of his suffering, he may, in a proper case, and under proper circumstances, be required to do the same thing for a like purpose, upon the requirement of the other party. In Barker v. Town of Perry, 67 Iowa, 147 (25 N. W. Rep. 101), an action to recover for a personal injury, the court, in speaking of this subject, said: “This kind of evidence is of an important and satisfactory nature. It brings before the jury part of the res gestee, and enables them to determine the nature and character of the injury better than to receive it in a secondary way, as it inust be described by witnesses.” The following cases show the trend of the authorities touching this question: [712] Langworthy v. Green Township, 95 Mich. 93 (54 N. W. Rep. 697); Edwards v. Common Council, 96 Mich. 625 (55 N. W. Rep. 1003); City of Lanark v. Dougherty, (Ill. Sup.) (38 N. E. Rep. 892); Carrico v. Railway Co. (W. Va.) (19 S. E. Rep. 571); Railroad Co. v. Finlayson, 16 Neb. 578 (20 N. W. Rep. 860); State v. Wieners, 66 Mo. 29; Railroad Co. v. Wood, 113 Ind. 548 (14 N. E. Rep. 572, and 16 N. E. Rep. 197); Wharton, Cr. Ev. section 312; 1 Best, Ev. (Morgan’s Ed.) 307; Abbott, Tr. Ev. 599; 25 Cent. Law J. 3; 15 Cent Law J. 2; Mulhado v. Railroad Co., 30 N. Y. 370; King v. State (Ala) (14 South. Rep. 878); Railroad Co v. Childress, 82 Gra. 721 (9 S. E. Rep. 602); Hatfield v. Railroad Co., 33 Minn. 130 (22 N. W. Rep. 176). He would be a bold man who would assert that the evidence of experts is in all cases valueless. The testimony of medical men in the case at bar touching these measurements, a matter not resting in opinion at all, but capable of physical demonstration, is in direct contradiction, and is well calculated to shake one’s faith in the reliability of experts. In the interest of attaining justice, these measurements should have been taken before the court and jury. We do not hold that in all cases, and as a matter of right, one party may require the injured party to expose the injured part of his person to the jury. But when such exposure is in no way indelicate, and seems to be essential in order that the jury may be properly and correctly advised as to the material fact which is in dispute, it is not only the right of the court to order such exposure and examination or measurement of the injured part on the request of a party, but its duty so to do. As we have said, the condition of this foot and ankle was material as bearing upon the question of the permanency of the injury, and the court erred in not ordering the measurements made as requested, [713] 7 VI. Complaint is made of the second division of the court’s charge. It is, in substance, the same as was given on the former trial, and which we held good when the charge was considered as an entirety. While we do not think that the jury could have been misled to defendant’s prejudice by the statement of the law therein contained, in view of other parts of the charge, still, as this case, for other reasons, must be reversed, it is proper to say that on a re-trial, the court should avoid the' statement found in this division of the charge, to the effect that it was the defendant’s duty to keep its walks in a “safe condition” for public travel. Defendant’s duty in that respect is to use reasonable and ordinary care. It is not an insurer of the absolute safety of its walks and crossings. The law in this respect was correctly stated in other divisions of the charge. 8 VII. Complaint is made of the use of the word “pitfall,” in the tenth division of the court’s charge to the jury. Technically speaking, the word means a trap set to ensnare the unwary. The court used it as describing the hole info which plaintiff fell. While we think the court used the word in a different sense, still, it would be better to use a word, or words, amply expressing the thought intended to be conveyed, and as to which no question of error can arise. VIII. Error is assigned upon the refusal of the court to give instructions asked by the defendant. So far as they announced correct principles of law, they were embodied in the court’s charge. The third instruction asked was properly refused, because it assumed that plaintiff knew the crossing was unsafe, and knew of the ditch, and knew that it was imprudent to attempt to pass over the crossing. There was no evidence justifying such an instruction. It is said, the damages allowed are excessive, In view of a re-trial. [714] we need not discuss that question. Many other questions are discussed by counsel. We have examined the points made, and discover no error, except as heretofore pointed out. Because of the refusal of the court to permit the measurements asked for, the judgment is REVERSED.