41 Colo. 415 | Colo. | 1907
delivered the opinion of the court:
Appellee, as plaintiff, brought an action to recover damages for injuries sustained through the alleged negligence of appellants, as defendants. A trial of the issues joined resulted in a verdict and judgment for pláintiff, from which defendants appeal.
Plaintiff’s right of action was based upon the claim that he was injured by tripping upon, and falling .over, an obstruction placed in the sidewalk by the defendant.company, in front of its place of business in the city of Denver, which obstruction consisted of an iron pipe in the flagging of the sidewalk about six inches from the curb. This pipe was about three inches high, with an arm three inches in length, making what is commonly known as a “goose-neck,” and was used to inflate bicycle and automobile tires.
The first error assigned is that the court erred in admitting evidence s of the fact that soon after plaintiff’s injury the defendant company removed this pipe, or ‘ ‘ goose-neck. ” It is settled in this jurisdiction that testimony that a defendant in an action for negligence took precautions subsequent to an injury to avoid future injury by removing, changing, or repairing the thing by means of which aiiother was injured, is not admissible for the purpose of establishing negligence. — Colo. Electric Co. v. Lubbers, 11 Colo. 505; Anson v. Evans, 19 Colo. 274; Zimmerman v. Denver Tramway Co., 18 Colo. App. 480: D. & R. G. R. R. Co. v. Morton, 3 Colo. App. 155.
One of the issues made by the pleadings was whether the defendant company had placed the ob-' struction in the sidewalk, .and for this reason counsel for plaintiff contend that the evidence was admissible for the purpose of showing that this obstruction was under the control of the defendant company. In support of this contention they cite: Readman v. Conway, 126 Mass. 374; Colo. Mortgage Co. v. Rees, 21 Colo. 435; Skottowe v. O. S. L. and Utah & N. R. Co., 16 L. R. A. 593, 22 Ore. 430; Jones on Evidence, § 290.
They also contend that the testimony was competent for the purpose of showing that the conditions, where the injury to the plaintiff occurred, had changed, and to prove that the “goose-neck” had, in fact, existed. In support of this contention they cite: Choctaw, O. & G. R. R. Co. v. McDade, 191 U. S. 64; Kuhns v. The Wis., I. & N. Ry. Co., 76 Ia. 17.
Conceding, but not deciding, that the testimony in question was competent for the purposes claimed by" counsel ’for plaintiff, that did not render it competent to establish negligence on the part of the de-,
Counsel for plaintiff say that the instruction requested was objectionable because its wording was such that the effect would have been to take away from the jury the question of whether or not there was a “goose-neck” in the sidewalk on the day plaintiff was injured, and whether the defendant company had placed it there and was responsible for its presence at the time of plaintiff’s injury. Perhaps it is true that the instruction could have been more carefully worded, so as to have more definitely called the attention of the jury to the proposition that the removal of the “goose-neck” subsequent to plain
The nest error complained of by counsel for defendant company is, that testimony from other persons that they had tripped upon the “goose-neck” was admitted. When this testimony was offered, one of counsel for plaintiff stated:
“We desire to show by this witness and others the fact that this man and others have stumbled.over this very projection, and it is evidence of the fact of negligence on the part of the defendant company. ’ ’
Testimony that other persons had tripped upon this “goose-neck” was clearly not admissible for the ¡purpose of establishing negligence of the defendants,
But counsel for plaintiff say that the testimony under consideration was admissible under the limitation stated by the court in ruling upon the objection to its introduction. The court, in passing upon the objection, stated, in substance, that the testimony was proper to establish, as a substantive fact, that the “goose-neck” extended such a distance above the sidewalk that a man’s foot would strike against it. Counsel for plaintiff insist that this limitation rendered the testimony admissible for the reason that the defendants, by their answer, denied that the “goose-neck” was in the sidewalk, and denied that it was high enough for plaintiff to catch his foot under it, and had also introduced evidence to show that the “goose-neck” was but an inch or an inch and a quarter above the curb, and, therefore, it was impossible for the plaintiff or any other person to catch his foot under it. We do not think it was admissible for the reason indicated by the court. The manner of its construction, for the purpose of determining whether or not it was dangerous, was the testimony for the jury to consider, and not whether others had stumbled against it. If testimony of that kind was proper for the purpose of establishing negligence of the defendants, then innumerable collateral issues would be raised for the same reasons indicated in disposing of the previous question determined. Clearly, for the reasons already given, it was not proper to establish negligence, and the jury should have been so' advised, by an instruction to that effect which was requested on the part of the defendants.
Error is assigned on the admission of testimony
Counsel for defendant say that the evidence of the amount paid by The Morey Mercantile Company was not competent, because the profits which the plaintiff might realize under his contract of employment were too uncertain and speculative to be the subject of recovery. We shall not undertake to determine whether or not prospective profits in the way of commissions are too uncertain and speculative to be recovered in an action for damages caused by an injury such as plaintiff sustained, because it is evident,’ for other reasons urged by counsel, that there was not sufficient testimony upon which to submit to the jury the question of his loss of earnings, either past or future, and that instructions requested by defendant on that subject should have been given.
At the conclusion of the testimony defendant requested instructions to the effect: (1) that evidence of the amount of commissions received by plaintiff from The Morey Mercantile Company should not be considered, because it appeared he was obliged to pay his own expenses from such commissions, and there was no evidence as to what these expenses amounted to; (2) that this testimony was not competent, because evidence of what plaintiff had earned in the way of commissions under a different contract, with a different firm than the one by which he was employed at the time of his injury, could not be considered in determining his probable earnings under the contract with the firm by which he was employed when injured; (3) that this evidence was incompetent to establish damages for loss of - commissions after he resumed work, when there
What plaintiff made during the period he was employed by The Morey Mercantile Company depended upon the amount of his expenses. There was no testimony on this question, although it appeared that, under his contract he was required to pay his expenses. This left the question of his earnings during that period entirely to speculation, because they could be no more than what he was paid in. the way of commissions less the expenses he incurred in earning such commissions. If his net profits while working for The Morey Mercantile Company could be considered in determining his loss during the period he was incapacitated from labor, there was no proof of what these profits would be. Only actual damages of the character under consideration, established by the proof of facts from which they may be. determined with reasonable certainty, are recoverable, and hence it was necessary for plaintiff, before the compensation received by him from The Morey Mercantile Company was competent (if admissible at all), to consider as a basis upon which to estimate his damages for the period he was incapacitated from work or after he resumed his occupation, to show what his expenses in earning such commissions were.—Central Coal & Coke Co. v. Hartman, 111 Fed. 96.
Just previous to his injury plaintiff had been engaged by a new firm. The territory in which he would operate under his contract with this firm was different from that he sold goods in when employed by The Morey. Company. The brands of cigars were also different. This left the question of his earnings under his arrangement with his new employers, as compared with those while engaged with The Morey Company, entirely problematical. He would have
Plaintiff resumed work about the first of September subsequent to his injury. There was testimony to the effect that he was lame at this time; that he had to use a cane; that he could not get in and out of a buggy which he used in visiting customers as readily as before, and that he employed a boy to assist him; but there is no testimony as to what he earned under these conditions. For all that appears from the record, he may have earned as much during this period as during a similar period previous to his injury; so that the damages resulting from his inability to labor after he resumed work were entirely a matter of speculation; and as the jury were advised that in estimating his damages they could take into consideration loss of his probable earnings while he was unable to work, and his decreased ability to earn money in, the future, without any proper basis upon which to estimate such damages, the court not only erred in instructing the jury on the subject, but also committed error in not giving the instructions requested by the defendant.
The court also instructed the jury that if they found that plaintiff was entitled to recover, they might allow him damages for mental suffering arising from disfigurement of person, if any was proven. Error is assigned on this instruction. There is a decided conflict of the authorities as to whether or not damages for mental suffering of the character
Plaintiff was permitted to call Mr. Whiting and cross-examine him under the act of 1899, p. 178, which provides that a party to any civil action may call the managing agent of any corporation which is a party to the same action, and examine him upon the trial thereof as if under cross-examination. This is assigned as error by the defendant company, upon the ground that the act in question does not contemplate that every agent of a corporation may be so examined, but is limited to a managing agent, and the witness was but the local agent of the defendant company. A construction of the statute is unnecessary, because it clearly appears that whether the plaintiff, by virtue of the statute, had or had not the right to call Mr. Whiting as a witness, the defendant company was not prejudiced by his examination, further than some of the testimony elicited was incompetent ; but that is not material to the question being considered. Mr. Whiting, subsequently, was placed upon the stand as a witness for the -defendant com
The defendant company filed a demurrer to the complaint, based upon the grounds that there was a misjoinder of parties and causes of action. This demurrer was overruled, and error is assigned on such ruling. The defendant answered to the merits, and also sought to raise the question of misjoinder by such answer. If there was any merit in the questions raised by the demurrer, they appeared upon the face of the complaint, and by answering to the merits, they have been waived. An objection to a complaint that there is misjoinder of causes of action and parties which, if it possesses any merit, appears on the face of the complaint, can only be raised by demurrer. If overruled, the question is waived by answering to the merits. Nor can it be saved by pleading such misjoinder in connection with an answer on the merits.—The Sams Automatic Car Coupler Co. v. League, 25 Colo. 129.
There are other errors assigned on behalf of the defendant company which it is unnecessary to consider. From the questions determined, enough has been said to serve- as a guide on a re-trial of the case, in the introduction of testimony and instructions to the jury, so far as all parties are concerned, with respect to those matters disclosed by the present record which affect the rights of the defendants jointly, or the defendant company alone.
We shall now consider those errors assigned on behalf of the city and county of Denver, which are vitally important to that municipality. The court instructed the jury that the latter would not be liable unless it appeared that the “goose-neck” had been in the sidewalk for a sufficient length of time so that the city, through its proper officers, might, in the
_ The court also instructed the jury that it could not find against either of the defendants under the evidence, unless it found against both. This was clearly erroneous, so far as the city was concerned, because if it had not been negligent in ascertaining the existence of the obstruction, or negligent in not removing it, it would not be liable, even though the defendant company might.
There is one further error assigned on the part of the city which should be noticed. Over objection by counsel for the city, plaintiff was permitted to testify as to injuries other than his broken leg. In the notice served on the city (required by § 9, p. 233, Session Laws 1893), the only injury stated was to his leg, and it is contended by counsel that testimony
It has frequently been decided that the service of notice on the city for injuries sustained by reason of a defective sidewalk was a vital condition precedent to the right to maintain an action for damages against the city. Such being the case, the damages recoverable must be limited to those growing out of the injuries stated in such notice to have been received. This limitation, of course, only applies to the city. The matter of notice to the city could not affect the plaintiff’s right of action as against the defendant company.
The judgment of the district court is reversed and the cause remanded for a. new trial.
Reversed and remanded