239 P. 735 | Idaho | 1925
This action was commenced by respondents Delvina Osier and John Osier, her husband, against the Consumers' Company and the city of Coeur d'Alene to recover damages for personal injuries sustained by respondent, Delvina Osier, caused on January 8, 1923, between 4 and 5 o'clock in the afternoon, by her tripping and stumbling over a water service-box of the Consumers' Company, which box was located in that part of the street ordinarily occupied by the sidewalk, there being no sidewalk built, however. From a judgment on a verdict for $5,548.50 in favor of respondents against the water company but not against the city and an order denying a new trial the company appealed.
Appellant assigns as error the denial of its motion for nonsuit, motion for a new trial, and requested peremptory instruction for a verdict in its favor, all based on the proposition that there was no competent evidence showing that Mrs. Osier's fall was due to the service-box, and that the verdict of the jury rested solely upon conjecture and speculation.
In support of this contention, Antler v. Cox,
"Negligence is a fact to be proven either by direct or circumstantial evidence and not presumed on conjecture or speculation; but, if there be proof of probable cause, whether an injury resulted in consequence of the established cause may be left to reasonable inference."
The facts of this case were that a brakeman was found dead on the ground beside a car which had a hole in the roof. No one saw the accident. A nonsuit was granted upon the ground that there were no witnesses who testified that the brakeman fell from the car or that the hole in the roof caused such fall; that the brakeman did fall from the car and by reason of tripping on the hole in the roof, causing his death, was too conjectural.
In the instant case Mrs. Osier testified that she was coming along with her daughter and did not notice the service-box, "and I stumbled over it and she had to help me up." On cross-examination she was asked:
"Q. Do you know for sure just what it was you stumbled over that night?
"A. Yes, sir; we turned right around and looked; there was nothing else in the path, nothing.
"Q. What was it?
"A. Just the service-box."
Further the witness testified that it was a service-box or stand-pipe that she stumbled over. Mrs. Osier's daughter, who was with her at the time of the accident testified that it was the service-box and there was nothing else there. There is conclusive testimony that the respondent fell, respondent testifying that she stumbled over the service-pipe and both she and her daughter testifying that there was nothing else to stumble over.
Dumas v. Walville Lumber Co.,
"Under the facts and circumstances, there are so many things that might have caused the lumber to fall that it was a mere matter of guess as to whether it fell by reason of any negligence of appellant. It was suggested that the Japanese ran against the pile with their truck or that they pushed the pile over. . . . . If we are to hold the rule against speculation and conjecture as applicable to this case, then on a mere suggestion of slight evidence of conflicting theories it could be successfully invoked in almost any case. The question here presented is really one of credibility of evidence. There is ample evidence, if Woosen is believed, to show that the lumber fell because it was negligently piled."
"A verdict may not rest upon pure speculation, but the correlative is also true that a verdict resting upon competent evidence may not be set aside upon pure speculation. (Dumas v.Walville Lumber Co.,
Appellant contends that its motion for nonsuit should have been granted for the reason that Mrs. Osier knew of the condition of the service-box, having stumbled over it before and that no legal excuse was offered for her failure to see and avoid the box.
From the testimony it appears that Mrs. Osier had only passed over this path five or six times and that some two weeks before the accident she had stumbled over the service-pipe and that her son had stumbled over the box. Between *275 the time her son had stumbled over the service-box and the date of the accident she had made a trip to Spokane, spending over a month on this trip, and after her return she had walked along the path two or three times prior to Christmas. The only evidence as to the reason for her failing to remember the condition of the pipe was that she and her daughter were hurrying home from town, talking together, and arrived at the service-box before they realized, appellant contending that such circumstances make the matter of contributory negligence a question of law for the court. The cases are conflicting on the point of whether such a question is one of law or one of fact under such circumstances.
"In Carscallen v. Coeur d'Alene etc. Co.,
"It is a well-settled rule in this state that a person injured by an accident of this character will not be precluded from recovery on the ground of contributory negligence unless it was such that upon consideration of all of the facts and circumstances as they appeared at the time, a reasonably prudent person would not have acted as did the injured party; and only when it appears upon the undisputed facts *276
that a reasonably prudent person would have acted differently, does it become a question of law. (Wheeler v. Oregon W. R. N.Co.,
Where a man knew ten or fifteen days previous there was a board broken in a sidewalk, and he passed over the same at night, and received injuries on account thereof, at the time not thinking about the holes, the fall occurring while he was walking along just the same as anyone would walk upon the street, contributory negligence does not appear as a matter of law, but the question as to its existence is properly submitted to the jury. (Carson v. City of Genesee,
The general rule as stated in the note to Lerner v.Philadelphia, 21 L.R.A., N.S., 614, at 638, is to the effect that the use of a street, sidewalk or crossing known to be defective or obstructed, which is not so obviously dangerous that no prudent person would attempt to use it, is not negligence as a matter of law which will bar a recovery for an injury caused by the defect or obstruction. (Cases cited in note.)
Previous knowledge of a defective condition of a highway, and failure to remember such defect, does not necessarily constitute contributory negligence which will prevent a recovery. (Cowie v. Seattle,
The cases bearing on the subject of momentary forgetfulness are numerous and conflicting. The cases of Knoxville v. Cain,
Appellant contends that the water system of appellant was installed under a valid ordinance of the city of Coeur d'Alene, and that if the service-box was installed within the authority of the franchise the city could not be liable, citing City ofLewiston v. Isaman,
Appellant complains of instruction No. 2, which was to the effect that Mrs. Osier had a right to presume that the walk was safe. While a party may indulge in a presumption that a street on which he travels is not defective, an instruction to this effect is misleading and inapplicable where the person knew of the existence of, and that one might fall or stumble over the defect in question. (Sumner v. Scaggs,
"A person who suffers injury by reason of a defect in a highway of which he has previous knowledge is not necessarily barred from a recovery on account of such knowledge, but the fact of such knowledge demands the exercise of greater care and caution in passing the defective place than if he had been ignorant of it. (Cairncross v. Village of Pewaukee,
The question of contributory negligence was very close in this case and was primarily based upon the knowledge of respondent of the defect. This instruction absolutely ignoring the element of knowledge and stating a rule of law not applicable to the facts in the case was highly prejudicial and reversible error, since it practically negatives the question of contributory negligence and invades the jury's province to pass thereon.
Instruction No. 5 is not argued in the brief and therefore will not be considered.
Instruction No. 6 taken alone was probably incorrect but was cured by instruction No. 7.
Instruction No. 23 is complained of, particularly the portion to the effect that plaintiff might recover for mental pain and suffering and any such pain and suffering which the jury might infer she would suffer in the future. There is no pleading or proof that the respondent suffered any mental pain or suffering and no evidence showing that respondent was likely to suffer such mental pain from the facts of the injury and such an instruction was erroneous and prejudicial, leading the jury to believe that they were entitled to award damages for mental pain and suffering. (Bennet v. Oregon W. R. N. Co.,
Appellant's requested instruction No. 2 was covered by instruction No. 6 and included negligent maintenance as well as negligent instalation.
Appellant's requested instruction No. 4 was properly refused and the correct rule is given in instruction No. 7.
Appellant's instruction No. 7 was properly refused, the correct rule being given in instruction No. 2.
By reason of the errors appearing the judgment is reversed and remanded for new trial, and it is so ordered. Costs awarded to appellant.
William A. Lee, C. J., and Wm. E. Lee and Taylor, JJ., concur. Budge, J., did not sit.
Petition for rehearing denied. *279
