107 N.W. 197 | N.D. | 1906
The plaintiff was injured by a fall upon a sidewalk of the defendant and brings this action to recover damages caused thereby. The first error assigned is that the court allowed the plaintiff to amend the complaint before going to trial. The original complaint pleads an ordinance of the defendant city prescribing the manner in which sidewalks shall be constructed. Paragraph 3 of the complaint was as follows: “That upon the westerly side of 7th street between Selkirk and Cheyenne avenues and opposite the lots known as No. 307 and No. 309 N. 7th St., the sidewalk is not laid in accordance with the provisions of said city ordinance above quoted, but on the contrary the sidewalk does not conform to the grade of said city street, established by the city engineer and approved by the city council, and in that said sidewalk is not laid gradient throughout the entire side of said block, but that upon said walk there is a desceñí of from 6 to 10 inches in height, opposite to the numbers above indicated, slanting down from a higher to a lower walk in an exceedingly dangerous manner and in absolute contravention of the terms of said ordinance.” Paragraph 4. of the original com
Conceding, however, that the amendment set forth a different cause of action in the strict technical sense, it was properly allowed. The amendment did not substantially change the plaintiff’s claim. This court has recently had a similar amendment under consideration and after mature deliberation held that an amendment changing a cause of action from one based on the common-law liability of a railway company to one based on the failure to comply with the statutory duty to fence its right of way was properly allowed in justice court. In that case it was said: “The object of statutes of this character is to facilitate and insure a full, fair and speedy determination of the actual claim or defense on the merits by requiring the court to permit the pleadings to be amended if for any reason they do not fully and fairfy present all the facts essential to the real merits of the claim or defense. It is clear, therefore, that an amendment of the complaint is not objectionable merely because it introduces a new or different cause of action in the technical meaning of that term.” Rae v. Railway Co. (N. D.) 105 N. W. 721. That case is decisive of this, and is adhered to as a correct construction of the statute, which should always be liberally construed in favor of the amendments. It cannot be successfully contended that the amendment was a surprise to the defendant which would justify the postponement of the trial. The defendant’s attorney was served with a copy of the amended complaint three days before the day that had been fixed for the trial of the action. When
The defendant assigns as error to refusal of the court to strike the cause from the calendar on his motion. The ground of this motion was that no notice of trial had been served, nor a new note of issue filed after the amended complaint was allowed. The statute governing notices of trial provides, among other matters, not material here, that “there need be but one notice of trial and one note of issue, and the action must then remain on the calendar until disposed of.” No cases are cited in support of the contention except the decisions of the courts of New York. The New York statute is materially different and does not contain the controlling provision in favor of the district court’s ruling that “there need be but one notice of trial.” It is difficult to construe this provision with effect if every amendment of the complaint must be followed by a new notice of trial. It would necessitate reading an exception into the statute to so hold. The Supreme Court of South Dakota has held adversely to defendant’s contention under the same statute. J. I. Case Threshing Machine Co. v. Eichinger (S. D.) 91 N. W. 82.
Exception was taken to the overruling of an objection to the following question asked of a physician: “Is a broken leg like that liable to be weak for a while and cause trouble if used much?” The use of the word “liable” is objected to as permitting a possibility to be considered in estimating damages. In an instruction the word would be improper as results that will follow with reasonable certaiifiy only are to be considered in fixing the damages to be allowed. The use of this or similar words in questions is generally improper, but the answer to the question makes it clear that no prejudice could result from asking the question. The answer was: “It ought not after it was perfectly united, it ought not to cause much trouble. There might be slight pain at the
Objection was made to the following question and overruled: “Doctor, assuming that she broke the leg by reason of the fall that she suffered on the sidewalk, would such a fall, or might such a fall cause internal injuries or strains that would produce pains of the character that she was complaining of?” The witness answered: “It might be possible.” Prior to giving this answer the witness had testified on cross-examination concerning these other injuries or strains in the plaintiff’s side and back, and had treated her for the same. The plaintiff had testified that she had suffered such pains and that they were caused by the fall. The ques tion objected to related solely to the cause of such pains and whether they were or might be the result of the fall. It was nothing more than a hypothetical question propounded to an expert witness as to the cause of pains concerning which the plaintiff had testified, and was corroborative of her answers to some extent.
Two other questions were objected to and the objections overruled. They were similar to those just considered. To one of them the answer was not prejudicial if the question be conceded to be objectionable. The other pertained to the cause of certain existing conditions which had been testified to by the plaintiff, and did not refer to the further continuance of such conditions.
The judgment is affirmed.