City of Bradford v. Downs

Opinion,

Me. Chief Justice Paxson :

This was an action on the case brought in the court below against the city of Bradford to recover damages for an injury to the plaintiff’s son, a lad of about seven years of age, caused by his stepping into a hole in the plank sidewalk of said city. The injury appears not to have been considered very serious at the time ; at least, no complaint was made to the city authorities until the commencement of this suit. The injury occurred on September 8, 1881; the suit was not commenced until February 2, 1885. The injury which tbe boy sustained resulted in his death about four years thereafter. This fact was alleged by the plaintiff and has been found by the jury. Under such circumstances the case has not nnrch to commend it. The delay of about four years in giving notice of tlie accident, or making any claim therefor, certainly placed the city at a great disadvantage, and left the municipality practically at the mercy of the plaintiff, whose claim rests upon his own testimony and that of his wife. Our duty, however, is to dispose of the case as we find it, and revise the rulings of the court below upon the law.

While the specifications of error are numerous, there are but few which require comment.

We cannot say the court erred in not striking off the amended declaration. The first declaration contained two counts, in each of which damages are claimed for the loss of the boy’s services by reason of his injury. In the amended declaration, damages are claimed for the loss of his services occasioned by his death. This would seem to enlarge the cause of action somewhat, yet it is more seeming than real, as the first narr alleged the injuries to be permanent, involving a total loss of services. We cannot say that the amendment of the narr was not allowable.

There is no merit in the second specification, which alleges error in excluding the boy’s declarations, made some time after the accident. They were not part of the res gestas: and, as the action was by the father for the loss of services, we do not see how his rights can be affected by the declarations of the son. It is true the plaintiff claims by reason of the injury to the boy, but his legal rights are independent of that fact, and cannot be defeated by anything the son can say or do. This specification is not sustained.

The only other specification we consider it necessary to refer to is the sixth, which alleges error in the answer to the defendant’s eighth point. The point could not have been affirmed as it would have withdrawn the case from the jury. This could not have been property done. The defendant might have been entitled to a more specific instruction had it been asked for. The point was as follows : “If the jury believe the child alleged to have been injured did not have such care, attention and medical treatment as a prudent person would bestow upon a child so injured, then the plaintiff is guilty of negligence, and your verdict must be for the defendant.” As the case stood under the pleadings the learned judge would have been justified in refusing this point. The lack of proper treatment would have been no answer to the claim for the original injury, however it might have been as to the count claiming damages for the death of the boy. Hence it was not error in the learned judge to say in answer to the point: “ Answered in the negative. The facts assumed in this point will not entirely' defeat a recovery, but may properly reduce the amount thereof; this is for the jury to determine.” Had the defendant desired an instruction bearing only upon the amended count in the declaration, the point should have been differently framed. As presented to the court we see no error in the answer of the learned judge.

Judgment affirmed.