Dotton v. Common Council of Albion

Cooley, C. J.

When this casewas before the Court on a was that there was some evidence the record tending to show negligence on the part of the authorities conducing to the plaintiffs injury, and she was entitled to have it submitted to a jury. 50 Mich. On a second trial she has recovered judgment, and the is now brought here by the defendant.

no showing of negli- ; but I am constrained to say that while it is very weak, ought not, perhaps, to have led to a verdict for plaintiff, it substantially the same as that given on the first trial, and the decision made in reviewing the former trial should therefore control.

on the court upon the reception of evidence from physicians. Plaintiff claimed to been seriously and permanently injured, and she called physician who attended her on that occasion, and obtained evidence from him which tended to support her claim. He testified that he had known the plaintiff before her injury, and she seemed to be a strong, healthy, robust woman. defense undertook to show that the plaintiff, instead of healthy before, was afflicted with chronic ailments, and this purpose they called two physicians who testified that attended upon her professionally, and were able to tell whether her constitutional health was impaired before the of the alleged injury. They were then asked to state *577 -whether it was impaired in fact; but having stated, in response to an inquiry by the court, that such information as they had -on that subject was obtained professionally, while in attendance upon the plaintiff as her physician, and was necessary to enable them to prescribe for her, the proposed evidence was excluded. It is said that this was error, because the plaintiff waived her privilege to have the seal of professional confidence preserved unbroken when she put her own physician upon the stand to testify to her condition. Doubtless she ■did so as to him to the extent to which she carried his examin- • ation; but it does not appear that he testified to any professional knowledge acquired in a relation of confidence, previous to the injury; and a waiver of her privilege in his case to permit him to disclose what he learned of her condition at ■that time could be no waiver of a similar privilege in the . case of others relating to other occasions. If the other physicians had been called by her, and partial examination gone into on her behalf, it would have been different; but as the ■case stood, there seems to have been no error in excluding their evidence. How. Stat. § 7516; Campau v. North 39 Mich. 606 ; Page v. Page 51 Mich. 88 ; Storrs v. Scougale 48 Mich. 388 .

■Objection was made that the plaintiff was allowed to prove what she earned in working by the day and otherwise at manual ■labor before the injury. This, it is said, bore on the question, 'of damages, and was improper, because she was a married woman, and her services belonged to her husband, who might ■bring suit for loss of them. But an inspection of the record shows that the evidence was given to show the plaintiff’s ■previous bodily condition, and that no damages were claimed in respect to loss of compensation or profits from labor.

It was claimed in the case that the plaintiff, on her own showing, was guilty of contributory negligence, and instructions were requested from the judge to that effect. She certainly appears to have had as much notice of the defect in the walk as the village authorities, and it would seem that ■she ought to have avoided the in jury. But she had the excuse ■that she was hastening late in the evening for a physician for *578 her daughter, who had been taken ill suddenly, and her negligence was not so far unquestionable as to justify positive-instructions upon it. Detroit &c. R. Co. v. Van Steinburg 17 Mich. 99 ; Grand Rapids &c. R. Co. v. Martin 41 Mich. 667 ; Hassenyer v. Michigan Cent. R. Co. 48 Mich. 205 .

I find no error in the record, and think the judgment should be affirmed.

Sherwood, J. concurred. Campbell, J.

In this case the injui’y done to Mrs: Dottom was not caused by any defect in the plank bridging laid across the road-side ditch in which she fell, but by the removal of’ the bridging itself, which was done by some unknown person in the evening before she fell in. This removal was not made known, and could not very well be, to the city, and its'removal could not be imputed as corporate negligence.

There was some testimony tending to show more or less defects in the bridging, but they had nothing to do with the injury in question. Plaintiff acted on the supposition that there was a bridging in place, and there is no special reason to indicate that it would not have been entirely safe for her to cross it, if in place. She was familiar with the premises, and was not in any fear about the crossing. The mischief being the immediate result of what the corporation was not in fault for, it cannot be transferred to something else, so that recovery may be had for a grievance that did not exist.

In my opinion, there was nothing authorizing the plaintiff to go to the jury, and I think the judgment should be reversed.

ChampliN, J. concurred.