149 P. 483 | Mont. | 1915
delivered the opinion of the co art.
By this action plaintiff seeks to recover damages for personal injuries received upon Pine Street, in the town of Stevensville. Negligence is predicated upon the action of the town in maintaining in its street a culvert in a dangerous condition, in that the plank covering was decayed and broken, leaving a large hole.
1. The notice served upon the town council meets all the [1] requirements of section 3289, Bevised Codes, and is sufficient. Anything in the notice beyond what the law requires is to be treated as surplusage.
2. The trial court did not err in refusing to give defendant’s offered instruction D 2. The plaintiff was not compelled to as-
3. Whether plaintiff knew of the defective condition of the culvert before he was injured was a question properly referred
4. This case does not fall within the rule announced in Storm v. City of Butte, 35 Mont. 385, 89 Pac. 726. Plaintiff’s evidence, tended to prove the amount he expended for medical treatment,
5. Over defendant’s objection, the trial court admitted [5] evideuce of the loss of time and earnings suffered by the plaintiff as the result of his injury, and in instruction 11 charged the jury that plaintiff’s lost time was a proper element for consideration in determining the amount of damages which he might recover. In these instances the court erred. The complaint does not contain any allegations of special damages, and, under the general rule, evidence of loss of time or earnings was inadmissible, and such loss was not a proper element in measuring plaintiff’s recovery. (Gordon v. Northern Pacific Ry. Co., 39 Mont. 571, 18 Ann. Cas. 583, 104 Pac. 679.) The evidence
The cause is remanded to the district court, with directions to grant a new trial, unless, within thirty days after the remittitur is filed with the clerk, the plaintiff shall indicate in writing