87 Minn. 484 | Minn. | 1902
Action for personal injuries suffered by plaintiff through a fall upon a sidewalk in the village of North Mankato. She had a verdict. This appeal is from an order overruling defendant’s motion for a new trial.
Belgrade avenue is the principal street in the village, which has
No direct notice of the condition of the walk was conveyed to the authorities, and the duty to repair, upon which the consequent right to recover must be predicated, rests upon evidence that it had continued in a defective condition so long that the village was bound to take notice of its condition. This would be termed constructive notice of the defect; and might depend upon the nature and extent of the use of the walk, as well as the length of time the defective condition had existed before the accident. We cannot lay down any rule to determine the time a defect must continue to constitute such notice that will be absolute. Each case must depend upon its own facts. The negligence of a municipality in allowing defects in sidewalks to continue is relative, and, of necessity, its location; the extent to which it is traveled; itsu
It appears that a person who had been employed to work on the streets passed over the walk on several occasions between the time it was interfered with by the owner of the adjacent lot and the accident, but it was not shown that he had supervision thereof. It also appears that this was a walk quite extensively traveled by the inhabitants of the village; also that its defective condition was apparent, and easily discovered; and we are of the opinion that the learned trial court did not err in holding that the circumstances disclosed by the evidence made it a question of fact for the jury whether, at the time plaintiff was injured, defendant was charged with such notice of its condition as imposed upon it the duty to make suitable repairs.
We are also of the opinion that reasonable proof of the notice required by law to be given to cities and villages before action is commenced was made in this case. It is not denied that the recorder of the village received a notice proper in form, although it was a carbon copy; but there was a reasonable comparison of such copy with the original. The service of the copy was by a third party, who did not read its contents. This omission was, however, otherwise supplied. No claim is made that the village did not have knowledge of the injury to plaintiff within the requisite time through such notice, and this objection is without merit.
At the time of the accident plaintiff was an unmarried lady, twenty-nine years of age, enjoying a remunerative employment as a music teacher. By reason of the injury she was confined to her bed two weeks. After this she changed her physician. Her injured limb was then put in a plaster cast, and kept there six weeks, during which time she was compelled to remain in a confined and painful position. It was then placed in another cast, and remained there for a further period of six weeks, during the greater portion of which she was confined to her bed. After the second cast was removed, she was unable for a while to step on her
While this testimony was disputed, it was for the jury to determine the weight that should be given it. In view of the character of the injury and the extent of the suffering sustained by this lady, we do not think the trial court erred in holding that the verdict was not excessive.
It was also claimed that the change of physicians by the plaintiff was not conducive to her recovery. We cannot say that, in the exercise of plaintiff’s discretion in selecting her physician, she was negligent, or should be charged with error of judgment, in her first choice, or subsequent change of her medical advisers and assistants.
Order affirmed.