Thompson v. Reed , 29 S.D. 85 ( 1912 )

McCOY, P. J.

There was a verdict and judgment in favor of plaintiff in the court below, and defendant appeals to this court, alleging insufficiency of the evidence to justify the verdict, and -assigning as -error the admission of certain evidence over-defendant’s objection, and that the verdict is excessive, and the-result of prejudice or passion.

It appears that on the evening of August 20, 1910, after it became dark, in the city of Sturgis, Meade county, while plaintiff, a bus driver was delivering passengers on Third street, one of the principal streets of the city and much traveled, and while he was seated on the top of his bus, and driving at a moderate trot, and while so driving along the middle of said street, he was caught in the mouth by a telephone wire owned and maintained by defendant, and draggled from the seat of his bus, and a portion of his teeth and jawbone violently torn from his mouth; that plaintiff was without fault on his part, and had no knowledge of the presence or condition of said wire; that said wire had been permitted and allowed to become loose and sag between a certain house and bam on opposite sides of said Third street; that said wire was attached to said barn about 15 feet above the ground, and to said house about 12 feet above the ground. There was evidence tending to show that said wire had been in said loose and sagging condition for some months prior to said accident. One witness testified that about a week or 10 days prior to the accident he had driven against the same wire while driving a bus, and had saved himself by throwing up his hand. Another .testified that he resided on said Third street near the place of said accident, and had noticed the condition of said wire prior to said accident, and it seemed to be very slack and hung down, sagged down about 18 inches, and was in that condition the first part of June. Another, who lived in the house to which the wire -in question was attached, testified to noticing the sagging condition of said wire fully a month prior to the accident. Another, who resided in the same house, testified that the wire was sagging real low and fastened so that one riding could be hurt, that she had noticed said condition some three or four weeks before the accident, and had called her husband’s attention to the condietion of the wire. It also appears that by the provisions of an ordinance of the city of Sturgis all telephone wires are required to be suspended at least 16 feet above the level of all streets.

[1] W are of the opinion this evidence was sufficient to justify a verdict in favor of plaintiff on the ground of the negligence of defendant, although defendant had no direct knowledge of the condition of said wire previous to said accident.

[2] A telephone company is bound to use ordinary care and reasonable diligence to place and keep its wires in a safe condition, where they extend over and along a public traveled road. Greater care and diligence would be required where the wires are over a principal street of a city than if over a highway in some sparcely settled district in the country.

[3] Actual notice of defects or dangerous condition is not necessary. Proof of facts from which notice may be implied is sufficient, negligently remaining ignorant being equivalent to actual knowledge. Actual notice is not necessary when the defect or danger could have been discovered by the use of ordinary care, and when the condition has existed a sufficient time to have enabled the owner to discover it. What constitutes sufficient time must depend upon the circumstances of each case. 29 Cyc. 431; West. U. Tel. Co. v. Engler, 75 Fed. 102, 21 C. C. A. 246. Whether defendant was negligent under the circumstances. of this case was purely a question for the jury.

[4] Appellant urges as error the overruling of his objections to the admission of said ordinance in evidence, on the ground that the same was not within the issues; but we are of the opinion that it constituted one of the surrounding circumstances which was proper for the jury to take into consideration in connection with all the other evidence in the case in determining whether or not defendant had been guilty of negligence.

[5] Appellant also contends that the court erred in permitting witness McDowell to testify, over the objections of defendant, on the ground that he was not qualified to give such expert testimony. This witness testified that he was a doctor of dental surgery, duly graduated, and licensed to practice. The testimony objected to was as follows: “Q. And the effect — is there any effect upon the stomach by failure to have the proper teeth? Ans. The condition of the teeth has everything to do with the condition of tire stomach. Q. Now, just explain to the jury what effect it has, as near as you can. Ans. In the first place, a proper mastication of the food, which is one of the first processes of digestion, is interefered with. That is the main thing. Q. The process of mastication is one of the processes of digestion, and one of the most important, is it not? Ans. It is one of the most important. Q. And the failure to properly digest the food would cause other stomach troubles that might be very dangerous? Ans. It would affect the stomach.” The ground upon which expert testimony is permitted is that in a great variety of cases where the subjects under investigation are wholly unfamiliar -to -the court and jury there would be no adequate mode of arriving at any satisfactory conclusion, if expert testimony were rejected. The matters so testified to by this witness are of such common and universal knowledge to all who have ever had teeth and a stomach that it was hardly the subject of expert testimony at all. Still, we are of the opinion that any qualified dentist would be a proper expert on the subject about which this witness testified, providing the examination went further into scientific propositions than the ordinary mortal is presumed to know. It appears that the only objection raised by the brief to this testimony was that the witness was not qualified. The objection was properly overruled.

[6] Appellant next contends that -the verdict is excessive, in that plaintiff has sustained no substantial injury by reason of said accident. Plaintiff testified that hé was 22 years of age; that the jerking out of his teeth caused much pain; that he has had four bridges and three crowns put in place of those taken out. “They are not as good as my own teeth. They kind ■ of act like there was a piece of wood in there. I cannot chew or move that side of my mouth like I can the other.” Dr. Swafford, a physician and surgeon, testified that the loss of the bones and teeth are permanent injuries. “The teeth and bone will never come back; a repair job of anything is never as good as the original. Plaintiff was brought to my place when the accident occurred. There was no question but he was suffering considerable pain.” Dr. McDowell, the dentist, testified: “I saw the case after the teeth had been removed. All the teeth from the upper left central, back of the upper first molar, together with the bückle plate of the process, were gone. The process is a bony formation. Strictly speaking, there would be a little of the alveolar and the lip gone. An injury of that kind would be permanent. The teeth put in there would be permanent to a certain extent, not so permanent as the original teeth. The strain that would come on the space would all fall on the teeth supporting the bridge. A person has to exercise a great deal more care with those than with ordinary teeth, with reference to getting and keeping the space between the jaw bone and the teeth clear.”

We are inclined to the view that the verdict for $920 was quite reasonable.

Finding no error in the record, the judment of the circuit court is affirmed.