Holmes v. City of Fond du Lac

| Wis. | Aug 15, 1877

Cole, J.

The complaint in this case was framed under ch. 96, Laws of 1873. It includes such damages as the husband and the wife might by separate actions recover, biit which could not be united in the absence of that statute. On the trial, the deposition of the female plaintiff was offered in evidence. Her. téstimony was objected to generally on the part of the city, on the ground that, being the wife of her coplaintiff, she was an incompetent witness in the cause. When John A. Holmes was called as a witness for the plaintiffs, he was objected to generally, because he was the husband of the plaintiff Esther. It will be seen that the objection in both cases went solely to the competency of the witnesses to testify in the action, and was rightly overruled upon the decisions in Barnes v. Martin, 15 Wis., 241, and Hackett v. Bonnell, 16 id., 417. Whether or not the examination of either witness could be restricted at all, is a question not raised by the form of the objection, though it is discussed by counsel on both sides in their briefs. But, as the question is not before us, we express no opinion upon it.

Testimony was admitted, against the defendant’s objection, to show a dislocation or injury to Mrs. Holmes’ hip by the accident; alsoTo show an injury to her bowels, abdomen and uterus. It is claimed that this evidence was inadmissible under the complaint. The complaint alleges that Mrs. Holmes, while traveling on the sidewalk in the exercise of due care, stepped into a bole in tbe walk, “ and was thrown forward on to her side and face on said sidewalk, whereby she received great bodily injury, and was severely bruised on her leg and thigh, and had her thigh dislocated, and whereby she received great and cruel injury to her bowels and on her abdomen, and was much sick, sore, lame and disabled,” etc. This allegation was broad enough to allow the admission of the testimony offered to prove the injuries above referred to. As we understand the evidence, it tended directly to prove that these injuries resulted from the fall and were the natural consequences of the accident. There was no error in admitting it.

The exceptions taken to the charge of the court, and to the refusal to give the instruction asked, require but a word of comment. The request which was refused was to the effect that the jury might infer contributory negligence on the part of Mrs. Holmes, from the 'fact that she passed directly by the hole in the walk a short time before she stepped into it. Mrs. Holmes, however, testifies that there was a board thrown over the hole, which would prevent her seeing it, and the jury might have believed that this was the case. All the circumstances attending the accident were submitted to the jury under a proper charge on the question of contributory negligence. This is all the city had the right to require.

In respect to the womb difficulty spoken of in the testimony, the court charged that it must be traceable, directly or indirectly, to the injury; that is, the court added, in substance, it must have followed as a consequence, a natural and legitimate effect, of the injury; otherwise there could be no recovery for it. We see no objection to the charge on this point. This disposes of the material questions arising upon the charge.

By the Court. ^ The judgment of the circuit court is affirmed.