Lush v. Incorporated Town of Parkersburg

UcClaiN, J. The allegation as to the negligence of the defendant was that the accident: “ was occasioned wholly by the fault, carelessness, and negligence of the defendant corporation, its officers and agents, for that the said approach upon which plaintiff slipped and fell was improperly and negligently constructed in such a way as to produce an abrupt, steep, and dangerous' incline from the walk to the [703] bottom of said approach, and was carelessly and negligently constructed, in that the planks were placed lengthwise, and in that no cleats or strips had been nailed across it to prevent one from slipping, or in that no measures had been taken by the defendant corporation, its o*fficers or agents, to prevent the same from being and becoming dangerous to pedestrians.” „ 1. Sidewalk ap-stRructSn-Cne¿-ligence. The only evidence as to the approach to the sidewalk being dangerous, and as to the negligence of the defendant in allowing it to remain in a dangerous condition, was to the effect that it should have been provided with or strips nailed across it. The approach was 0f pine planks laid lengthwise, five feet long, and it was eight and one-half inches higher where it joined the sidewalk than where it joined the street. The slope of the approach was therefore one foot in seven, and there is no evidence whatever that this slope in itself rendered the approach dangerous, or that the town was negligent, in view of all the circumstances, in constructing the approach at such a slope. We do not think that the jury would have been justified in finding that as a matter of fact it constituted negligence on the part of the town to construct the approach at this slope, and the court, therefore, did not err in failing to submit to the jury any question as to the negligence of the town, save that relating to the absence of cleats or strips. The court is not bound to submit to the jury every issue raised by the pleadings, but only such issues as are for the determination of the jury under the evidence. 2. Same. The fact that plaintiff slipped on this approach when it was covered by a recent fall of snow would not be sufficient* to warrant the jury in finding that the slope was in itself, as a matter f aeL ^00 great, and that the approach was therefore negligently constructed and maintained; nor was the allegation of negligence in constructing the walk so that the planks ran lengthwise instead of crosswise such an allegation of negligence as should have gone to the [704] jury, in tbe absence of any evidence whatever that it was unusual or improper to employ the former form of construction instead of the latter, or that the approach was more dangerous on account of the form.of construction employed. 3. Evidence: testimony on. former trial. Complaint is made of the admission in evidence, over the plaintiff’s objection, of the transcript of plaintiff’s testimony on a former trial. The objection is that this testimony was not admissible for the purpose of impeach-meat because no foundation had been laid, but it was competent for the defendant to prove the statements made b^ the plaintiff on a former trial as admissions against her interest, whether they were contradictory of any statements made in her testimony in the last trial or not. If the statements on the former trial were not against plaintiff’s interest, their, admission in evidence certainly was not prejudicial; if the^ were against her interest, then they were admissible for that reason. 4. Evidence: admissibility model. Error is assigned in the admission in evidence, over plaintiff’s objection, of a model of the approach; but there was no merit in this objection, for the model was shown to be a reproduction of the approach in all essential particulars, and the witness pointed out on cross-examination the particular details in which it failed to correspond exactly with the approach to which the testimony related. 5. Exclusion of Evidence: harmless error. Error is also assigned in the exclusion of evidence offered for plaintiff as to the extent of the injury suffered by plaintiff by reason of the impairment of her earning capacity; but as the i'ai7 found plaintiff not to be entitled to recover anything for the injury, notwithstanding clear proof of damage suffered by her on account thereof, the exclusion of evidence relating exclusively to the measure of her recovery was clearly not prejudicial. No error appears from the record, and the judgment.is affirmed.