Dittrich v. City of Detroit

McGrath, J. Plaintiff seeks to recover for an injury to his left knee, alleged to have been occasioned by a fall, on [247] October 23, upon a defective sidewalk. The defendant offered testimony tending to show that on October 22 the walk had been repaired, and placed in a reasonably safe condition. Defendant’s counsel also sought to show that the injury which plaintiff sought to charge upon defendant was, in part at least, due to an accident which had occurred August 9. Plaintiff testified that on that date a street car had struck the same knee, and caused a crack in the kneecap, but .“after that it got well;” that Dr. Black treated him for that injury; and that another physician prescribed for the last injury. Dr. Black was sworn for the defendant, and testified that he had attended plaintiff for the first injury from August 10 to September 3. He [248] was then asked the following question, which was excluded: ■“•Was Mr. Dittrich discharged by you at that time [September 3] from treatment?” The fact as to treatment by :a physician is not a matter of privilege. Brown v. Insurance Co., 65 Mich. 306. Defendant had the right to show, if that was the purpose, that’ plaintiff was not discharged .from treatment, but witness refused to attend further, ■because another physician had been called in, without the ■consent of witness. This testimony would not have disclosed any information acquired by the witness in his jprevious attendance, or that was necessary to enable him to prescribe, and it was error to exclude it. Counsel for defendant requested the court to instru'ct the jury as follows: “ 1. If you believe the testimony of the sidewalk inspector, Walker V. Keyes, that the walk in question was repaired by the city employes October 22, 1890, then the plaintiff cannot recover in this action. “2. If you do not believe the testimony of witness Keyes, but find that the walk was in a defective condition, yet, if you believe the plaintiff knew this defective condition, and could have passed over it safely by the exercise of reasonable care, then he cannot recover in this action, and your verdict must be for the defendant.” If the sidewalk had been repaired on the 22d, and placed in a condition reasonably safe for pedestrians, and plaintiff was injured on the very next day, it cannot be said that a sufficient length of time had elapsed from -which notice of the condition could be inferred, nor that -.the city had had a reasonable time within which to repair '.the defect. While contributory negligence is not to be presumed ffrom the knowledge of the existence of the defect, such ¡knowledge enjoins upon a party a degree of care commensurate therewith. The judgment will be reversed, and a new trial ordered. The other Justices concurred.