119 P. 477 | Mont. | 1911
delivered the opinion of the court.
This is an action for damages for personal injuries. The plaintiff prevailed in the trial court, and the city appealed from the judgment and from an order denying it a new trial. Only two of the questions presented demand special consideration.
1. It appears that within sixty days after the injury was received the plaintiff filed with the city clerk a notice directed to the city council, stating the time when and the place where the injury occurred. Section 3289, Revised Codes, provides
The decision in Hensley v. City of Butte, 36 Mont. 32, 92 Pac. 34, is not applicable here, for the statute considered in the Hensley Case (Laws 1897, p. 219) provides that the city council shall meet especially to hear objections to the creation of the improvement district. The statute further provides: “Any person or persons who are owners or agents of any lot or parcel of land within such improvement district shall have the right to appear at said meeting either in person or by counsel and show cause, if any there be, why the improvements mentioned therein shall not be made.” (Section 31.) Under that statute we held that a protest in writing left at the city clerk’s office was not a presentation of the protest to the meeting of the city council.
It is a general rule of law that “one who has been injured by the negligence of another must use ordinary diligence to effect a cure, and there can be no recovery for damages that might have been avoided by the exercise of such care.” (13 Cyc. 76.) The rule was distinctly recognized by this court in Sweeny v. Montana Central Ry. Co., 19 Mont. 163, 47 Pac. 791. With the purpose of invoking the rule just announced, the defendant requested the trial court to give an instruction as follows: “You are instructed that if you find that the plaintiff was injured on the 6th day of October, 1909, it then became her duty to use all reasonable care and precaution to minimize the damages that might result, and, if you find that she failed to do this, then you cannot return a verdict for such damages that resulted by her want to exercise such care and precaution.” The request was refused, exception taken, and error is now predicated upon the ruling.
Counsel for respondent recognize the rule stated above, but insist that the proposed instruction is defective, that, by the use of the word “all” before the word “reasonable,” the instruction imposes upon the plaintiff a greater burden than that
But it is insisted that the instruction as proposed is defective
In view of the facts disclosed by this record, it was the duty of the jury to determine whether plaintiff did in fact exercise ordinary care, and, if she did not, then to limit her recovery to those damages which were shown to be caused proximately by the defendant’s negligence. The refusal of the court to correctly instruct the jury left them free to award to plaintiff damages upon the basis of her condition at the time the physicians were called, irrespective of the question whether ordinary prudence would have prompted her to call for relief at an earlier date, and thereby lessen the consequences of her original injuries. The omission of this instruction left the case to go to the jury upon an erroneous theory, and because of the error the judgment and order are reversed, and the cause is remanded for a new trial.
Reversed and remanded.