20 P.2d 626 | Mont. | 1933
The evidence of the plaintiff and her husband is more than enough to charge the plaintiff with contributory negligence, in that she was familiar with the alleged broken sidewalk, she had lived two doors south of the loose spot in question for a period of seven months, and was familiar with that sidewalk for more than seven months. (7 McQuillin on Municipal Corporations, 2d ed., secs. 3012-3014; Ryan v. Kansas City,
The plaintiff in the instant case was pregnant and knew that she was pregnant; and knew of the defective condition of the sidewalk; and knew that it would be dangerous to run over the said sidewalk in the night-time, and utterly disregarded her own safety in so doing. Her pregnancy was a temporary infirmity and in the words of McQuillin, section *603
3023, "* * * one who is infirm in any way must take more care and employ keener watchfulness in walking upon the streets and avoiding obstructions than other persons not infirm, in order to reach the standard of ordinary care established by the law for all persons alike, whether weak or strong, sound or deficient." (Keith v. Worcester B.V. St. R. Co.,
A careful analysis of the testimony will thoroughly convince this court that the plaintiff and her witnesses have told a highly improbable story and have changed their story in order to conform to an anticipated defense. They have not been straightforward and honest in their direct examination, and we submit that the trial court should have done its duty and directed the verdict in favor of the defendant. (Whitney v.Bertoglio Mercantile Co.,
We submit that the jury was influenced by passion and prejudice in awarding the plaintiff the sum of $5,000, as her injuries consisted mostly of a miscarriage, and in this respect we call the court's attention to the case of McCabe v. City ofButte,
On the question of the amount of the verdict, we submit the following cases which are fairly comparable to the present case in the way of injuries sustained to show that, in this case, the verdict was very reasonable indeed: Pittsburgh, C.C. St. L.R.Co. v. Banfill, (1903)
On the evening of January 29, 1931, at about the hour of 10 o'clock, the plaintiff, in company with her husband, was returning from a neighborhood grocery-store. On approaching their residence in the 200 block on South Dakota Street, believing she heard her five year old son crying, who was alone during their absence in the family dwelling, she commenced to run on this sidewalk. Her husband shouted a warning to her to be careful. The plaintiff tripped over a loose block or piece of concrete, fell violently, sprained her ankle, injured the ligaments of her left leg, sprained her back and suffered a miscarriage and displacement of the uterus. As a result of the miscarriage, she was confined to her bed for some eleven days. Since the accident her monthly periods have continued for an abnormal length of time.
Testimony was received to the effect that the sidewalk at the particular place where the plaintiff fell had been cracked, broken and in a loose condition for a year or more. At one time it had heaved, developing a bump which one of the neighbors had removed. Plaintiff had passed over this walk at various times during the six-months period prior to the accident.
The jury returned a verdict in the sum of $5,000. Judgment was accordingly entered, and motion for new trial made and denied. The appeal is from the judgment.
The defendant asserts that the plaintiff was guilty of[1] contributory negligence as developed by the testimony received in her behalf. Contributory negligence was not pleaded by defendant, nor was any proof offered supporting that theory as a part of defendant's case. Generally, the question of contributory negligence is one of fact for the determination *606
of the jury. It is only when but one reasonable conclusion can be reached from the facts that the court will determine the question as a matter of law. (Olson v. City of Butte,
Defendant argues that the plaintiff was guilty of contributory[2] negligence, because of her physical condition, in running along the street. Though a woman may be pregnant, she is one of the public, and has a right to use the streets in the same manner as other persons. While it may be said that at every stage of the period of pregnancy her coming and going should be regulated with due care for the safety of her unborn offspring, her legal obligation to foresee and provide against neglect of duty by the public authorities is no greater than that of other members of the community. (McCabe v. City of Butte,
It is also urged that the plaintiff was guilty of contributory[3] negligence because she had knowledge that the sidewalk was defective; also as a result of the warning by her husband. Mere knowledge of an offending instrumentality does not constitute contributory negligence. (Neilson v. Missoula Creamery Co.,
A number of photographs of the sidewalk were received in evidence, but these are not a part of the record in this court.
Under the facts and circumstances presented by the record, we are entirely unwilling to say that the plaintiff is shown to have been negligent as a matter of law. The court properly submitted the question of contributory negligence to the jury. *607
The defendant urges that the evidence on behalf of the[4] plaintiff was contradictory, and seeks to invoke the rule that, "where there are inherent improbabilities in the evidence upon which the case must rest, so patent that the truth cannot be in it, it is a question of law and not one of fact." (Whitney
v. Bertolgio Mercantile Co.,
The giving of certain instructions, over objection by the defendant, is assigned as error. These specifications were not argued either in the brief of defendant or on the hearing before this court. They will therefore be deemed waived.
It is contended that the verdict is excessive. Our attention[5] is invited to the case of McCabe v. City of Butte,
The verdict in this case is dangerously near to being excessive. Had the trial judge, who saw the witnesses and heard them testify, reduced the verdict on motion for new trial, we would have no hesitancy in affirming such action. However, we do not feel that the verdict is so clearly excessive as to shock the conscience and understanding. Therefore the verdict is accepted as conclusive. (Staff v. Montana Petroleum Co.,
The judgment is affirmed.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES ANGSTMAN, MATTHEWS and STEWART concur. *609