170 Iowa 555 | Iowa | 1915
1. Plaintiff in his petition and amendment thereto states that defendant negligently and carelessly permitted and allowed water to collect and run across and stand upon a part of a wooden sidewalk on a public street in the city; that plaintiff, while walking over said walk, using ordinary care, without contributory negligence on his part, fell on such walk at such place by reason of stepping on a ridge or hump of ice formed across the walk, caused by water clogging and freezing at such place, thereby creating such ridge, and so negligently permitted by defendant to exist for many days prior to such injury; that by reason of such defect and danger in such walk, plaintiff was made to fall with great force, and he thereby received severe and permanent injuries to his head and brain, and that all of such injuries still continue and will remain permanent for years.
As appellant states it, the principal issues thus presented were: (1) Did the conditions complained of in fact exist? (2) Did the city have knowledge, actual or constructive, of their existence? (3) Was the plaintiff free from negligence contributing to his injury? (4) Was plaintiff hurt as alleged, and what was the extent of his injury, if any ? As to all these questions we think the evidence is such that
As to the first proposition, plaintiff testified that the water from the roof of a house fronting on the street ran right across the 'sidewalk. “I fell at this spot, which was rough and lumpy. I fell because of the lumpy condition of the ice.”
“Was it muddy in the street that night? Their witness,. Mrs. Andrews, says it was a moist, misty night, sleeting. Didn’t that make mud?”
The objection was that the court admitted the testimony for the purpose of showing and testing the recollection and memory of the witness, and not for the purpose of showing the conditions as they existed. Mrs. Andrews was a witness for the defendant. As to this witness, it is clear from the record that the evidence was properly admitted for the purpose of testing her recollection as an aid in fixing the date. The record shows:
Q. “How do you fix the time April 11th?” A.- “I marked it down, and here it is (exhibiting paper).” Q. “What kind of a day was it on the day — on the evening he got hurt, was it cold or warm?” A. “It had sleeted in the morning.” Q. “What kind of a day was it, cold or warm?” A. “Well, it wasn’t severe cold; it was just medium.” Q. “It was sleeting and wet?” A. “Yes, sir, that morning.”
“It was misty and rainy all day and towards evening froze up.” Q. “Misting rain all day on January 10th?” A. “Yes, sir.”
So that the testimony on this point was drawn out by the defendant, and the evidence of Mrs. Andrews went in without objection. We are unable to see how there could be any prejudice to the defendant because of the circumstances just referred to.
XY.
“If you find the plaintiff entitled to recover, he should be allowed fair and reasonable compensation for his injuries, if any. In estimating his damage, no precise rule can be given for the amount to be allowed as they are not in their nature susceptible of exact money valuation. You are to use your own sense and judgment and be guided by the evidence in allowing him such sum as will reasonably compensate him. In making up this amount, if you find for the plaintiff, you*560 should consider the ability of the plaintiff to earn wages and perform labor prior to the alleged injury, as shown by the evidence, and also his ability to earn wages and perform labor since receiving the alleged injury, and award the reasonable value of the time lost because of the injury, and a fair compensation for the bodily pain and suffering caused by the said injury, if any. ’ ’
The plaintiff was injured in January, 1913, and the trial took place in December, 1913. Some of the evidence bearing on the extent of his injury will be referred to briefly. Plaintiff testified:
“I couldn’t rest a minute and the pain continued over months. At night I can’t sleep with my back -ef my head. I have pain in my head here so and have had since, and this pain in my shoulder still continues and swells up every night that I work, and I can’t earn as much money as I did. My business was making mortar, carrying mortar and one thing*561 and another. I couldn’t make a _ full hand, never since. I tried pretty hard; I couldn’t do it.”
Plaintiff’s wife gave similar testimony, and there is some testimony tending to contradict this evidence. It appears then from the testimony, and the jury could have so found, that for nearly a year after plaintiff’s injury, and up to the trial, he still suffered pain and sleeplessness from his injury, and this would justify the conclusion that it would exist in the future, at least for some time; so that, had the instruction authorized future damages, there would be support in the testimony. Evans v. Elwood, 123 Iowa 92, 96; Cotant v. Boone Suburban, 125 Iowa 46, 53. But as before stated] we think the instruction does not authorize recovery for future damages. The instruction is, therefore, more favorable to the defendant than it ivas entitled.
The fifth and last assignment is that the court erred in overruling defendant’s motion for new trial, and erred in overruling each and every ground of said motion. This is somewhat general, but it includes points in regard to the question of plaintiff’s contributory negligence and the extent of his injury and like questions which have been before noticed.
¥e discover no error in the record, and the judgment is, therefore, — Affirmed.