Scurlock v. City of Boone

Evans, C. J. The plaintiff was a resident of the defendant city. On February 26, 1907, she claims to have fallen upon one of the sidewalks by reason of a loose board thereon. The claim is that her grandson, who was walking at her side, stepped upon one end of the board, whereby the other end was thrown ~up against the plaintiff in such a way as to cause her to fall. It is claimed that she [582] suffered internal injuries either by the fall or by the blow from the board. It was claimed at the time of trial that she was then in a poor state of health, and one of the 'issues of fact in dispute was whether her then condition was caused by the accident complained of. 1. Evidence: hypothetical questions: discretion. I. Appellant’s counsel present many assignments of error in their argument, and we have considered them with due care. Many rulings in the introduction of evidence are challenged. We find no error in these rulings. Appellant makes special complaint of the ruling, of the court whereby it sustained the plaintiff’s objection to the hypothetical question put by defendant’s counsel to their own expert, Dr. Stanger. The trial court must be permitted to exercise a large discretion in prescribing the form of a hypothetical question to an expert witness. We do not think the court abused its discretion in this case. If otherwise, the witness was permitted later to cover the same ground fully without objection, and it leaves the appellant no ground of complaint in that regard. 2. Same: admissions of a party: instruction. II. It appeared from the testimony on behalf of the plaintiff that prior to the áccident she had always maintained good health. On behalf of the defendant, Mrs. Miller and Mrs. Ball, her daughter, both testified that on one occasion, about two years previous, the plaintiff called at their home at Ames, and that she stated to them at that time that she was in very poor health. T. L. Jones, one of the city council, testified also that prior to the accident the plaintiff had frequently told him that she was not well. None of this testimony was denied by the plaintiff, either directly or indirectly; nor did she refer to it. in any way in her1 rebuttal testimony. The court gave to the jury the following instruction. “(12%) There is some evidence in this case with respect to an admission by the plaintiff in regard to the condition of her health at a time prior to [583] the accident. Verbal admissions, consisting of mere representations of oral statements, made a long time before, are subject to much imperfection and mistakes, for the reason that the person making them may not have expressed her own meaning, or the witness may not have understood her, or, by not giving her exact language, may have changed t]^e meaning of what was' actually said, and this is especially true where a long time has elapsed since the alleged admission was made. Such evidence should therefore be received by you with caution.” This instruction is earnestly challenged by the appellant. We are constrained to hold that it can not be sustained. This court has heretofore approved the rule on this point as laid down by Greenleaf; 1 Greenleaf, section 200; Martin v. Town of Algona, 40 Iowa, 392; Allen v. Kirk, 81 Iowa, 670. It will be observed that the instruction under consideration, through probable oversight, falls short of stating the Greenleaf rule. As set forth in the Martin case, supra, the following should have. been added: “But when such admissions are deliberately made or .often repeated, and are correctly given, they are often the most satisfactory evidence, and the jury should consider all the circumstances under which they were made and give them such weight as they are justly entitled to receive.” This latter proviso gives a proper balance to the rule. An instruction substantially in the form of the one under consideration was condemned by this court in Hawes v. B., C. R. & N. Ry. Co., 64 Iowa, 315. See, also, Castner v. Railway Co., 126 Iowa, 586. The natural effect of the court’s instruction as given was to minimize unduly the testimony of the defendant on the subject referred to, and this is especially so in view of the fact that the plaintiff neither denied the statements attributed to her, nor denied recollection of them, nor offered any explanation. [584] 3. Same. [583] The tendency of this instruction to minimize the evidence referred to was further emphasized by the use of [584] the word “some’’ in the first sentence. This court has heretofore condemned the use of this word in this connection, in that its tendency is to belittle the evidence referred to. State v. Donovan, 61 Iowa, 369; State v. Dorland, 103 Iowa, 174; State v. Rutledge, 135 Iowa, 581. We feel constrained therefore to hold that defendant’s exception to this instruction must be sustained. 4. Municipal corporations: defective walks: instruction. III. Appellant complains of instruction 3%, which is as follows: “Under the law of Iowa a city or town must answer in damages to one who while in the exercise of due care is injured by reason of an obstruction , - . . .. _. _ . or defect m the public street of such city or town, if such obstruction or defect was known to the officers of said city or town, or could have been - known by them by the exercise of reasonable care and diligence for such reasonable length of time before the accident as would have enabled them to remove the obstruction or remedy the defect.” This instruction fails to state the. measure of defendant’s duty with reference to the- maintenance of its sidewalks, namely, that i't is required only to maintain them ■ in a reasonably safe condition for public travel; nor is the omission supplied by any other instruction'given. Abstractly considered, it must be said therefore that the instruction is erroneous in this respect. Usually it is a question of fact for the jury to determine in a given case whether a sidewalk was in a reasonably safe condition for public travel notwithstanding the defect, if any, complained of. It is argued in support of the instruction that the very definition of “defect” in a sidewalk implies such a condition as to render it not reasonably safe. If we should concede this to be so in a strictly legal sense, yet this is not such a definition as would readily present itself to the mind of a juror. It is important that the juror should understand without doubt the very basis upon which the liability of a city rests. [585] In view, however, of the nature of the defect involved in this case and the evidence descriptive thereof, it is a close question with us whether we should not hold the error to be without prejudice, and we are not wholly agreed upon the question. Inasmuch as there must be a new trial because of the error pointed out in the foregoing division, we content ourselves with this discussion of instruction No. 3y2 in order that the error may be avoided on a future trial. * 5. New trial amendment of motion: time of filing. IV. A controversy is presented between the parties as to .whether defendant’s amendment to motion for a new trial was filed in time. It was permitted by the trial court. It presented no extraneous matter, but was based wholly on the record. We fail to see t * , the materiality of the dispute. I his amendment was somewhat more specific in its objections to the instructions than the original motion was, but it appears from the record that defendant saved exceptions to the instructions at the time they were given. It was not required therefore to incorporate exceptions in a motion for a new trial. Nor was it necessary that it file a motion for a new trial at all in order to entitle it to review in this court. Other questions argued by counsel are not such as are likely to arise upon a new trial. Bor the error pointed out in instruction 12.%> the judgment below must be reversed.