Boehm v. City of Detroit

104 N.W. 626, 141 Mich. 277, 1905 Mich. LEXIS 779
CourtMichigan Supreme Court
DecidedSeptember 19, 1905
DocketDocket No. 37
StatusPublished
Cited by12 cases

This text of 104 N.W. 626 (Boehm v. City of Detroit) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boehm v. City of Detroit, 104 N.W. 626, 141 Mich. 277, 1905 Mich. LEXIS 779 (Mich. 1905).

Opinion

Blair, J.

The plaintiff, an infant, brought suit, by his next friend, against the city of Detroit for injuries alleged to have been received on the night of August 14, 1901, through a defective sidewalk. At the time of the accident the plaintiff was a little over four years old, and was walking over the sidewalk in question between his father and mother; his father holding him by the left hand. As they were going along, the child stepped into a hole in the sidewalk and fell with considerable force against his father. Plaintiff alleges in his declaration that by reason of this fall—

“ The muscles, tendons, nerves, and ligaments of his right‘leg at or near the groin thereof were greatly and permanently injured, sprained, bruised, and wrenched, and the femur bone of said leg near the hip joint was bruised and permanently injured, and said leg was sore and lame, and so remained for a long time, to wit, from thence hitherto, and as a result of said injuries an abscess formed near the groin of said leg, which caused plaintiff great suffering, and said abscess was lanced, and the bone where the same had formed was scraped, and plaintiff is advised by his physician that abscesses are liable to [279]*279recur at said point. That said injuries have impaired the use of said leg, and caused plaintiff to favor the same, and plaintiff fears that his said leg is permanently disabled. That in consequence of said injuries plaintiff has suffered much pain, and his nervous system has been greatly shocked, permanently injured, and he has been obliged to undergo medical and surgical treatment at an expense of about seventy-five dollars.”

It was conceded by counsel for the city that defendant was negligent, but it was insisted that no injury had come to plaintiff through such negligence; that there was no causal connection between the child’s fall and the abscess. The trial resulted in a verdict for plaintiff, and defendant has brought the record to this court for review upon writ of error.

Defendant’s counsel presented 20 assignments of errors, but have discussed in their brief and argument in this court only assignments numbered 1, 2, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 16, which are as follows:

“1. The court erred in refusing to strike out that portion of witness Boehm’s testimony wherein he said: ‘ He was in awful pain and agony.’
“2. The court erred in refusing to strike out that portion of the testimony of witness Boehm where he said: ‘ We could not hardly touch his leg.’ * * *
“ 6. The court erred in refusing to strike out that portion of witness Shields’ testimony wherein he said: ‘ There is evidently contraction of these tissues yet.’
“7. The court erred in permitting witness Shields to give an answer to the hypothetical question on page 27 of the record.
“8. The court erred in remarking: ‘It seems to me that two ounces of pus would show an injury of some kind.’
“9. The court erred in using the following language: ‘ In the absence of any other cause for that, would you attribute it to stepping into the sidewalk, or would stepping through a hole in a sidewalk be likely to' produce injuries such as you found the child suffering with ? ’
“10. The court erred in using the following language: ‘ All he can say is whether such a fall would be natural to contribute to the injury in question. I don’t suppose [280]*280a child would contract scarlet fever by falling through a sidewalk. You may show that stepping through the sidewalk was the probable cause of this injury.’
“11. The court erred in refusing to strike out that portion of witness Shields’ testimony wherein he said: ‘And straining his leg.’
“ 12. The court erred in denying defendant’s request to direct a verdict for the defendant on the ground that ‘ the negligence of the parents must be attributed to the child' under the facts of this case.’
“13. The court erred in refusing to permit counsel for defendant to argue to the jury the negligence of the parents, so that the jury might pass upon the intent of the parents considering the premises.
“14. The court erred in permitting witness Weber to answer the hypothetical question on page 32 of the record.
“15. The court erred in permitting witness Weber to answer the question in reference to Dr. Shields: ‘ He is a
reputable physician.’
“16. The court erred in charging the jury as follows:
“ ‘Gentlemen of the jury, there is another feature which is com. mon to cases of this description, which is eliminated from this case. That is the case of contributory negligence. I charge you, gentlemen of the jury, that no negligence on the part of the parents of the boy in taking him over the walk in question can be imputed to the boy, and that, therefore, no negligence of the father would bar his right of action, as it would bar another if he was guilty of such conduct as contributed to the injury. I also charge you that a boy of that age, four years and three months, who is being led by his father, cannot be guilty of contributory negligence.’”

Defendant’s counsel admit that several of the above assignments of error would be trivial in an ordinary case, but insist that, since the sole question of fact for the jury was whether the fall of the child was the cause of the abscess, the rulings of the court permitting improper statements of opinions and conclusions of witnesses were materially prejudicial to the defense.

No requests to charge were presented by defendant’s counsel, the issue of fact was clearly and fairly stated to the jury, and the charge is not questioned, save as to the instruction that the negligence of the father could not be imputed to the child, in which respect the charge cor[281]*281rectly stated the law. Shippy v. Village of Au Sable, 85 Mich. 292; Mullen v. City of Owosso, 100 Mich. 105 (23 L R. A. 693). The fact that in this case the father had hold of the child’s hand at the time of his fall does not affect the principle involved.

The child’s father testified regarding his injuries as follows:

“ As we were going home there, I had the little fellow, holding him by the hand, and he stepped into the hole. He fell with such force as to throw him against me and injure his leg so that he started to cry, something that is unusual for him to do. As we were going home he cried all the rest of the way, and when we got in the house he was crying, and we considered him hurt. I was on the outside going south. The mother was on the inside going the same. way. This place is about 270 feet from Berlin street. I didn’t see him the next morning. I saw him at noon. I saw his leg at that time. It seemed swollen tome, and red. Well, he was around the house• he was lying down on the couch. The hole he stepped into was, I should judge, about 6 inches. The second day after the accident I saw him. He couldn’t use his leg. It was so painful he couldn’t use it. I know it was painful by his actions. He had a very high fever, and the doctor said he had a very bad fever.
‘ ‘ Q. State what you know yourself about it.

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Cite This Page — Counsel Stack

Bluebook (online)
104 N.W. 626, 141 Mich. 277, 1905 Mich. LEXIS 779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boehm-v-city-of-detroit-mich-1905.