133 Minn. 370 | Minn. | 1916
On July 33, 1914, David McNab and his wife Mary were, and for several months prior thereto had been, tenants in a six apartment three story flat building owned by defendant. There was a basement in which was a laundry and separate store rooms for-the different tenants. The stairways, hallways and the portion of the building which the tenants used in.common were under the care and control of the landlord, this defendant. From the hall on the first floor a stairway led down to the basement. There was a door at the foot of this stairway, but the threshold of the door was al
The complaint herein declared both upon negligence in furnishing a step of that construction unfastened, and in permitting it to become out of repair. And the court instructed the jury that it was defendant’s duty to use ordinary care to provide a reasonably safe entrance to the laundry, “and, as this step was used, it was his business to use reasonable care to see that this step was kept in a reasonably safe condition.” There was testimony that, although Mrs. McNab had been a tenant nearly a year before the accident happened, she had been to the basement very seldom, and did not know that the step was unsafe or wabbly, and further that it is somewhat dark where it is placed, so that its defects were not readily ascertained by inspection. The jury might well find that the defect of construction in the step was not obvious. Persons might time and again pass over it without discovering its insecure footings, depending upon the fact that they happened to plant the foot not nearer one
Before Mrs. McNab testified, a doctor who had treated her was called to give an opinion as to the cause of her injuries. This was out of order, and upon the agreement that the answer might be stricken out, if the proof did not show that the hypothetical question, put to the doctor, correctly embodied the facts to be thereafter placed in evidence. The question contained a recital of the supposed facts to the effect that after •plaintiff fell she, in an attempt to arise, again fell, and this time backwards. Mrs. McNab did not so testify, and the answer might well have been stricken, because all the facts included in the question had not been made to appear, but we are not able to say that reversible error was committed. The doctor’s answer was that in his opinion, based upon the facts assumed in the question, the accident caused the injuries. Whether she fell once or twice was not likely to affect the answer. In the ques
Our conclusion is that we cannot disturb the verdict in favor of Mary McNab. But we do not think the evidence justifies the damages awarded the husband. It stands to reason that when the jnry gave only $500 to the wife, who suffered the injury and the pain, the loss to the husband of companionship and services should not be placed at a very high figure. The value of the services of the regular physicians who treated his wife was a modest amount. Neither plaintiff testified to what had been paid out or incurred for treatment, and the testimony of the different healers who had given rubs or massage as to the number of such treatments, their value or the amount paid therefor is very indefinite and unsatisfactory. Under the circumstances we think an award to the husband of more than $1,000 is without fair support upon this record.
The order is affirmed in the case of Mary McNab and in the case of David McNab the order denying defendant a new trial is reversed, with direction to the court below to grant a new trial, unless David McNab, within ten days after the remittitur goes down; files a writtent consent in the district court to reduce the verdict to the sum of $1,000.