84 Neb. 417 | Neb. | 1909
Plaintiff claims damages for personal injuries received by falling on a defective sidewalk in defendant city, which she alleges defendant had,- with full knowledge and actual and constructive notice, permitted to remain in an unsafe and dangerous condition for at least 90 days prior thereto. The answer is a general denial, coupled with a plea of contributory negligence, which is denied in the reply. There was a verdict for plaintiff for $1,250, and, from a judgment thereon, this appeal is prosecuted.
It is urged that the damages awarded by the jury are excessive. The evidence fairly shows that plaintiff, who was 45 years of age, was strong and able-bodied prior to the time of her injury; that she had earned “from $1 a day to $3 and $4 a week,” and on one occasion shortly prior to her injury $8 a week, and after the injury had been compelled to do lighter work for which she received $2.50 to $2.75 a week. Her physician and the city physician both testified that she ought to quit work and stop using her limb for many months, and neither of them would say that she would ever fully recover. They also both testified that at the time of the trial her ankle was weak and swollen; that she could not bear her weight upon the injured limb as upon the other; and that her limb above the ankle was showing distinct atrophy, and that use of the limb was undoubtedly painful at that time, nineteen months after the injury. In the light of such a showing we cannot say that $1,250 was an excessive allowance.
Defendant next contends that “the court erred in excluding evidence of the amount of a claim for damages filed by plaintiff against the defendant city.” Defendant called the city clerk to the stand, and asked him if he had made any search for any reference to the claim of plaintiff in the record, to which he gave an affirmative answer. He was then asked if he had found any reference in the book of minutes or records of the council proceedings in regard to the plaintiff’s claim. He answered that he had found two. Defendant then offered, and the court received in evidence, the two entries referred to,
Defendant further insists that the court erred in not granting it a new trial on the ground of newly discovered evidence. If all of the evidence set oiit in the affidavits in support of this contention had been received, it could not possibly have changed the result. In addition to that, there is no showing of diligence on the part of defendant. There is no claim that any of the officers or the attorney of the defendant made any inquiry or investigation whatever among the neighbors and persons with whom the plaintiff had been employed, both before and after her injury, prior to the adverse result of the trial. One of the points is that plaintiff had complained of
The judgment of the district court is therefore
Affirmed.