City of Ripon v. Bittel

DixON, C. J.

The defendant in error here was the plaintiff in the court below and the action there was instituted by him against the city to recover damages for injuries to his person, caused by defects in a side walk which the city was bound to keep in repair. The plaintiff bad a verdict and judgment in that court and the city has sued out this writ of error. The injury was received in July, 1870, upon an old wooden or plank sidewalk, which the evidence shows was built in the year 1858. The walk was upon one of the principal thoroughfares on the west of the city, and did not appear to have been repaired since its construction. It was very considerably out of repair, and that to the knowledge of the street commissioner, some time before the accident happened. Planks bad been hauled upon the ground for the purpose of rebuilding or repairing it several days before the injury was received. This bad been done under direction of the street commissioner, or by a servant or laborer in his employ. The street commissioner knew the de *616 fective condition of the side walk in other places, but his attention bad never been called to the defect at this particular place. He knew the walk was old and rotten, and in some places unsafe, but be bad not specific knowledge of the danger or un-safety at the place of injury. The walk there was so situated that water ran under it and the stringers were defective and rotten and would not bold a nail. The circumstances of the injury were something like those in Goodnough v. the City of Oshkosh, 24 Wis., 549 . The plaintiff in passing over the walk met another person who stepped upon one cf the loose planks and it flew up and struck the plaintiff upon the knee-pan of his left leg, causing a severe blow and contusion, from which great pain and suffering ensued, and lameness followed from which the plaintiff bad not fully recovered at the time of trial, which took place in January, 1872. He was obliged to and still walked with a cane. Plaintiff was a butcher and kept a small meat market in the City of Ripon, and gave evidence of the nature and amount of his business, and that be was compelled to suspend it for about a year after the injury, in consequence of having received it, and that be bad not been able fully to resume business at the time of trial.

This evidence was objected to on tbe part of tbe city. Tbe jury returned a verdict for $1,200. It appears that tbe planks were not displaced at tbe time of injury until stepped upon by tbe person whom tbe plaintiff met. It likewise appears that tbe workman employed by tbe street commissioner knew that they were loose and bad attempted to nail them down before tbe time of accident, but tbe sleepers were so rotten they would not bold tbe nails.

Tbe foregoing is a general outline of tbe facts, as shown upon tbe trial, regarding tbe manner in which tbe injury was received and its nature and effects, tbe defect which existed in tbe side walk, and tbe knowledge which tbe city officers bad of such defect.

It is objected that the court erred in receiving evidence of *617 the nature and amount of the plaintiff’s business, and that the same was interrupted in consequence of the injury, and that thereby'pecuniary loss and damage were sustained. In support of this objection we are referred to the following authorities: Reed v. Belfast, 20 Maine, 246; Chidsey v. Canton, 17 Conn., 475 ; Canning v. Williamstown, 1 Cush., 451 ; Harwood v. Lowell, 4 Cush., 310 . All these were cases decided under statutes similar to our own. In the first it was held, that an action on the case by the father against a town for the loss of services of a minor son in his employ, and also for expenses of his illness, would not lie. Tbe right of the father to the future earnings of his minor children did not constitute present property within the words of the statute. Tbe second was a similar action brought by a husband and father, after recovery by the parties directly injured, for loss of services of a wife and minor daughter, and expenses, necessarily incurred, and it was decided that the action could not be maintained. It was said that for consequential damages, such as loss of service, expense of nursing, etc., resulting to a person from injuries to his wife and daughter, the statute gave no remedy. Tbe third was an action by the party injured, and it was ruled that damages are recoverable against a town only for an injury to the person or property, and not merely on account of a risk or peril, which causes fright and mental suffering ; but, where an actual injury to the person is sustained, however small, which causes oris necessarily attended with mental suffering, that suffering is a part of the injury, for which the town is liable in damages. In the fourth, the question decided was, that a husband, whose wife had been injured by reason of a defect in a highway, could not maintain an action against the town, obliged by law to keep the same in repair, to recover for medical and other expenses incurred, or for loss of his wife’s services, in consequence of such injury. Tbe decision was put upon the ground that the damage sought to be recovered was merely consequential, or such only as had been indirectly sustained by the plaintiff, and that the statute *618 did not intend to afford a remedy for all damages caused by the defect, but only for those done to the person, or ,to the horses, teams, carriages or other goods or chattels of the party injured.

It is manifest that none of those decisions, unlesss it be the case in 1 Cushing, touch or govern the question here, where the interruption of the plaintiff’s business, or, what was the same thing, the loss of his time and services, situated and employed as he was, resulted at once from the injury complained of, of from the disability and sickness, caused by it, and that not as the indirect or remote consequences of the injury, but as the immediate, natural and necessary effect produced by it. Sickness and inability to perform customary labor immediately followed the injury and were caused by it, and as immediately followed and caused by the injury also was the loss of time and services, — the breaking up and suspension of a business com ducted exclusively by the plaintiff in person, and the profitable and prosperous continuation and management of which depended wholly upon his individual industry and attention. We know of no action against a town in which damages of this nature have been excluded, and doubt if any such can be found. We know of no way in which just and adequate compensation or redress for injuries to the person, and such as the statute obviously intends to give, can be obtained by the suffering party, except it be by such proof of loss and damage sustained as that which was given in this case. Otherwise the action will be limited to a mere recovery of damages for bodily pain and suffering, and the medical, surgical and other necessary expenses attendant upon sickness and disease. No such construction has ever been given the statute, and it is obvious that the rule would fall far short of merited compensation for the injuryt The Gase in 1 Gushing, extends the damages to mental suffering necessarily consequent upon the injury, and the same principle must extend them also to value of time and services necessarily lost by reason of it, or which naturally and inevitably result from it.

*619 It is also objected that the court erred in admitting in evidence certain treatises on surgery wbicb were offered by the attorneys for the plaintiff. Tbe bill of exceptions is not certified to contain all the evidence given upon the trial, and fails to show bow much or wbat portions or passages of the treatises were read to the jury. It is urged that admitting the books as evidence was error, and that the court can only, in its discretion, permit medical or scientific works to be read by counsel to the jury, not as evidence, but only as having that force and authority wbicb the opinion of learned and scientific men may give. Some decisions in this state and elsewhere are cited in support of this position, and such perhaps may be the general rulé. But counsel for the plaintiff (defendant in error here) insists that if there was any possible purpose for wbicb the books were admissible as evidence, or any supposable state of case in which they ought to have been received, then it was not error to admit them, or if by chance they were admitted for a wrong purpose or improperly, that this court cannot so pronounce and determine. We think the counsel is quite correct in this position. Kelley v. Kelley, 20 Wis., 443 ; Cutler v. Hurlbut, 29 Wis. The record does not inform us what the purpose or object of the offer of the treatises was. Counsel suggest that it may have been to expose or discredit the medical witnesses, examined as experts, who, founding their opinions upon the same treatises, recognized as standard authority, bad testified that the books laid down such and such particular propositions or theories, or sustained such and such particular conclusions, when in truth and in fact the books did not do so and the witnesses were mistaken. Counsel asks if, under such circumstances, the books would not be admissible as in the nature of impeaching evidence, or to show that the experts were in error. We cannot say that the admission would be improper, and so must overrule the objection..

But there is another circumstance connected with the objection to wbicb our attention is also called. It is tbat the admis *620 sion of the boobs was only objected to as immaterial, and not because they were incompetent or wholly inadnxissable in evidence. It is a general rule that objections of the kind must be specific, so as to point out to the court the precise grounds upon wbicb they are made, and if put upon one particular ground wbicb is untenable, no other ground will be allowed to be substituted for it for the purpose of establishing error. That rule applies here, and if the evidence erroneously admitted was merely immaterial, it is incumbent on the party objecting, to show that be was or might have been prejudiced by it, before be can have any benefit or advantage of bis exception. Barton v. Kane, 17 Wis., 37, 43 .

Tbe only remaining exceptions urged on this writ, are to the refusals to give the first and second instructions requested by the defendant, and to the sufficiency of the evidence to show that the city authorities bad notice of the defect in question, wbicb last comes up, or is supposed to, on exception to the order overruling the motion for a new trial. Tbe general charge of the court, if not in the very language of this court in several decisions applicable to the case, was at least in accordance with the principles laid down in them, and was unex-cepted to. It covered very fully and fairly all the questions involved in the case. The two specific requests above referred to, and wbicb were refused, related more especially to the point that the defect in question was a latent one, and what would be the duty of the jury in case they so found. Tbe truth is, so far as the record discloses, that there was very little or no evidence to show that the' defect was of the kind properly called latent. Counsel seem to have insisted upon so calling it, and upon its being so submitted to the jury, because there was no proof that the street commissioner knew that those particular planks were loose. This, under the circumstances, was unnecessary in’ order to charge the city with negligence. It was well known that the whole side walk was old, rotten and unsafe. Tbe case of Goodnough v. Oshkosh, supra, relied upon *621 by counsel, differed very materially in its facts.- Tbe facts there appearing were, though they do not seem to be stated in the opinion or report, that the sidewalk in question had been but recently laid out, and was nearly new, and the planks loosened had been torn up or displaced by driving loaded wagons across it. The walk when laid was shown to have been properly laid, and the officers of the city were ignorant of the circumstance that loaded teams had passed over it and loosened the planks. The case presented a very different question, therefore, from any involved here, and the defect was one properly denominated latent.

Upon the question of knowledge in the street commissioner, enough has already been said, but if not, a sufficient answer is, that we are precluded from examining it, because the bill of exceptions does not purport to contain all the evidence.

By the Court. —The judgment of the court below is affirmed.