Thompson v. Village of Quincy

Grant, J. Plaintiff recovered verdict and judgment for injuries sustained by reason of a defective sidewalk of the defendant village. The negligence alleged is that the sidewalk— “Was out of repair, rotten, loose, rickety, dangerous, dilapidated, and unsafe for public use and travel, and the boards therein and composing the same had become loose, rotten, broken, torn up, and defective, so that they were then and there liable to turn over, tip up, and trip up pedestrians while passing over it.” The declaration also alleged notice on the part of defendant, and neglect to repair. Four assignments of error are relied upon. 1. In describing the injury, the declaration alleges that— “ The arm and leg of the plaintiff were then and there greatly hurt, cut,, sprained, bruised, wounded, and injured, * * * and the said plaintiff was also then and .there so injured in his said arm and leg as to permanently injure and cripjDle him for life.” The plaintiff testified, under objection, that his arm was [175] broken by tlie fall. It is insisted that the declaration was not sufficiently specific to admit proof of the fracture, and that this case is within Shadock v. Plank-road Co., 79 Mich. 7. The allegation in that case was that the plaintiff was hurt, bruised, and wounded. It was held that the allegation was not so specific as to admit evidence of fractures of shoulder, arm, and hand. Mr. Justice Campbell said it “gave no description of the place or extent of these injuries." The present declaration is not subject to this--criticism. It describes both the place and the extent of the injury. The rule contended for by defendant's counsel would require unreasonable strictness in pleadings. The objection was properly overruled. 2. Plaintiff gave in evidence several resolutions of the common council for about two years previous to the accident ordering the sidewalk to be repaired. This was objected to as being too remote. The sole purpose of the testimony was to show Icnoiuledge on the part of defendant of the condition of the walk. They were admissible for that purpose, when accompanied by proof that the repairs had not been made, and that the walk continued in bad condition. This testimony was therefore properly admitted. 3. A witness, who had testified in regard to the condition of the walk, was asked by plaintiff's counsel— “You may state how you have discovered, or in what manner you have discovered, its bad condition prior to the accident. “A. It was loose, and jiggled under my feet. The boards being loose, I experienced trouble, and stumbled on the boards, but never fell. I have seen people stumble in that way, but no one fell down." Both the question and answer were competent. The question did not necessarily open the door to collat [176] eral issues It is within the spirit of the rule adopted in Smith v. Sherwood Tp., 62 Mich. 159. 4. The court said in its charge to the jury: “The defendant on its part admits, and its counsel have admitted in their argument to you, and it has been admitted in the case, tliat in the spring of that year, 1888, this particular piece of sidewalk was out of repair." The record does not contain the arguments of counsel to the jury. We cannot, therefore, assume that defendants counsel did not make such an admission. When the trial judge refers in his charge to the jury to the statements of counsel, we must assume that he correctly quotes them in the absence of a contrary showing. Counsel de not appear to contradict the fact,' but content themselves by saying that the statement of the judge is not supported by the record. It is highly proper, and oftentimes the-duty of the trial judge in his charge, to refer to and comment upon the statements made by counsel in their arguments. He who objects to such comments must show by the record that he has been misquoted. Only when such statements are misrepresented or misstated does the court commit an error. Judgment affirmed, with costs. Chahplin, C. J., Morse and Cahill, JJ., concurred. Long, J., did not sit.