Styles v. Village of Decatur

Hooker, C. J. The plaintiff, a married woman, recovered a verdict and judgment of $750 against the defendant village by way of recompense for an injury suffered through a fall occasioned by a loose board in a sidewalk. The defendant has appealed. The accident is said to have happened in the evening after dark. She was walking with two of her children, when she was tripped by the board, which flew up in front of her as one of the children stepped upon its end, outside of the stringer. There was evidence tending to show that the walk was old, and that the boards had been loose for a long time. The plaintiff testified that she knew that the boards in the walk were accustomed to rattle as they were walked upon. Several witnesses were examined, and testified in relation to the walk, and error is alleged upon the ground [446] that this testimony was not confined to the place of the accident, and that it was not properly restricted in point of time. The accident happened near an alley, and the testimony referred to a board walk in front of a lot owned by McKay, upon which the woman fell. It was plaintiff’s theory that the stringers were rotten, and did not hold nails well, and it was competent to show the general character and condition of that walk. Campbell v. City of Kalamazoo, 80 Mich. 660 (45 N. W. 652); O’Neil v. Village of West Branch, 81 Mich. 546 (45 N. W. 1023); Fuller v. City of Jackson, 92 Mich. 205 (52 N. W. 1075); Grattan v. Village of Williamston, 116 Mich. 463 (74 N. W. 668). Witness Congdon was asked to state the condition of the walk, and replied that he did not think it good. He proceeded to describe it. Mrs. Clifton answered a similar question by saying that it appeared to be in bad condition. Plaintiff’s counsel at once admonished her that her answer was not proper, and asked her to state the shape that it was in. Both questions were objected to when asked, and an exception was taken to the answer given by Mrs. Clifton. It is obvious that, if the witnesses gave opinions of the condition of the walk, they were not asked to do so, and counsel could not well have prevented it. It was corrected at once, and should not be made a ground for a reversal of the case. One Gillum testified that he repaired the walk a short time before the accident, and it is insisted that this made testimony regarding its previous condition immaterial. He was called by the plaintiff, and testified that he was street commissioner; that he found this walk in front of McKay’s premises in bad condition, the stringers gone,— rotted out; that he could not nail through and get the boards to stay down; that he reported that condition to the council; and that he was directed to take stuff and patch it up. He visited the place and nailed the board in. The stringer was so that it wouldn’t hold the nails; and he said that he “kind of toe-nailed them crossways to the other [447] boards.” That the council had notice of the defective condition of this walk, if Gillum’s testimony is true, admits of no doubt. Their duty was then to put it in a condition reasonably safe and fit for travel. That duty was not discharged by sending a man to repair it. It was therefore for the jury to determine whether the repairs made by Gillum were such as to render the walk reasonably safe and fit for travel. Counsel beg the question when they ask us to assume that Gillum’s repairs were adequate because his statement that he made repairs is not directly contradicted. We think no error was committed in admitting the depositions. No exceptions were taken to one, and the condition upon which the other was to be read was complied with. There was prima facie proof that the witness could not attend court, and no attempt was made to contradict it, except by the unsworn statement of counsel. The hypothetical question objected to is not open to the objection made, as there was testimony which warranted it. Moreover, the objection, when made, was very general, and did not point out what facts were assumed by the question. A piece of wood was offered upon the claim that it was a part of the stringer of the walk. It was not claimed that it came from the exact spot where the accident occurred, but that it was a part of the stringer in immediate proximity. It was said to have been taken from the walk after it had been taken up. We think the testimony was competent. It is unnecessary to discuss the questions raised upon the testimony of witnesses Potts and Shockley, further than to say that, if the questions asked the former were improper, they elicited no harmful testimony, and it was within the discretion of the circuit judge to permit questions tending to show Shockley’s interest as a taxpayer. A number of errors assigned relate to the charge. Counsel asked that the jury be instructed that the plaintiff was guilty of contributory negligence and could not re [448] cover. We think that this was a question for the jury. A way might be in condition which would justify a court in saying that it was negligent to attempt to walk upon it; but that cannot be said of all highways that are out of repair, or that are not reasonably safe and fit for travel. They afford the only avenue for locomotion from place to place, and the exigencies of life are such that persons may go upon highways, though not in perfect condition, using reasonable prudence and care under the circumstances. Usually these questions are for the jury, as it was in this case. Mackie v. City of West Bay City, 106 Mich. 242 (64 N. W. 25); Lowell v. Township of Watertown, 58 Mich. 568 (25 N. W. 517). Other cases are also cited by counsel.1 It was proper to leave the question of the extent of the plaintiff’s in jury to the jury, although the physician called to see her did testify that her injury was trivial. We think the court did not err in refusing to give the requests of counsel. Some of them have been covered by what has been said, and of others it is sufficient to say that the charge as given covered their substance. We think it was competent for the jury to award damages for plaintiff’s expenditures in and about her sickness, and she was under no obligation to this defendant not to compensate her nurse merely because she had made no charge, and she is not compelled to lose her damages of any kind merely because she does not prove the amount with mathematical precision and certainty. The circumstances being laid before the jury, they ascertain the amount that it is reasonable to believe will be compensatory. [449] The court said to the jury that “fright and suspense may be treated as elements of damage.” If there was no direct proof of fear as to the consequences, and suspense, they are readily inferable from the circumstances, and. it was not error to leave these questions to the jury. The statement of the plaintiff immediately after her fall was properly treated as a part of the res gestee; and, if this accident happened after dark, there was no error in stating to the jury that it is the duty of the village to keep its sidewalks in a condition reasonably safe and fit for travel by night as well as by day. There is proof that the accident occurred after 5 o’clock on the evening of December 19th, and that it was after dark. It was therefore proper to instruct the jury upon that theory. The motion for new trial was passed upon by the circuit judge, and we think his order denying it should not be disturbed. The judgment is affirmed, Moore, Grant, and Montgomery, JJ., concurred. Footnotes [1] Viz.: Dundas v. City of Lansing, 75 Mich. 499 (42 N. W. 1011, 13 Am. St. Rep. 457); Fuller v. City of Jackson, 82 Mich. 480 (46 N. W. 721); Argus v. Village of Sturgis, 86 Mich. 344 (48 N. W. 1085); McGrail v. City of Kalamazoo, 94 Mich. 52 (53 N. W. 955); Graves v. City of Battle Creek, 95 Mich. 266 (54 N. W. 757, 35 Am. St. Rep. 561); Sias v. Village of Reed City, 103 Mich. 312 (61 N. W. 502); Germaine v. City of Muskegon, 105 Mich. 213 (63 N. W. 78); Schwingschlegl v. City of Monroe, 113 Mich. 683 (72 N. W. 7); Grattan v. Village of Williamston, 116 Mich. 462 (74 N. W. 668); Urtel v. City of Flint, 122 Mich. 65 (80 N. W. 991).