Decided June 16, 1958. Rehearing denied July 21, 1958.
Action by motorist against City and another for damages resulting from driving into excavation in street. Judgment for plaintiff.
Affirmed in Part.
Reversed in Part.
1. MUNICIPAL CORPORATIONS — Roads and Streets — Negligence — Dangerous Condition — Constructive Notice — Evidence. To establish constructive notice of a defect in a city street, the burden is on the plaintiff to show that such defect existed as a hazard for such period of time prior to the accident as to charge the city with knowledge of its dangerous condition.
2. Negligence — Notice — Question of Law. While questions of negligence and contributory negligence and generally within the province of the jury, where the liability of a city for damages resulting from a defect in a street depends upon proof of notice either actual or constructive, and evidence thereof is lacking or insufficient, the question becomes one of law.
3. DAMAGES — When Not Excessive — Evidence — Sufficiency. Where the evidence disclosed that plaintiff suffered a cervical disc injury to his neck as a result of driving into a street excavation; that he had a life expectancy of 25.27 years and was totally disabled from following his occupation of watchmaker; that an operation might not alleviate the condition, and if unsuccessful could result in complete paralysis, a verdict of $37,500.00 was not excessive.
4. Prior Injury — Relation to Present — Mitigation. Where there was no relation between plaintiff's wartime disability and his present injury, the benefits received as a result of such wartime disability cannot serve defendant in mitigation of damages.
5. Verdict — Prejudice — Evidence — Trial Court. Where nothing appears in the record to indicate that a verdict was the result of prejudice, partiality or mistake, the assessment of damages is within the exclusive province of the jury under proper instructions, and no mere difference of opinion, however diverse, will justify interference by the Supreme Court on the ground that the damages awarded are excessive.
6. AUTOMOBILES — Evidence — Opinion Testimony — Admissibility. Admission of the opinion testimony of qualified mechanic, to the effect that the damage to plaintiff's car was caused by driving into a hole of a certain depth, and which had no bearing on the ultimate fact as to whether the hole existed or that plaintiff was negligent or was injured thereby, was not prejudicial.
7. EVIDENCE — Expert Opinion — Admissibility — Discretion of Court. The question of whether the opinion of an expert is admissible and whether the witness is qualified, as well as determination of the competency of non-expert opinion evidence, rests largely in the discretion of the trial court.
Error to the District Court of Pueblo County, Hon. William L. Gobin, Judge.
Mr. GORDON D. HINDS, for defendant in error City of Pueblo.
Messrs. BURRIS BUMGARDNER, for plaintiff in error MacIndoe Plumbing and Heating, Inc.
Mr. JOHN R. WALL, for defendant in error.
PLAINTIFFS in error were defendants below and defendant in error was plaintiff. We will refer to defendant in error as "plaintiff" or "Ratliff," to the City of Pueblo as "Pueblo" or "City" and to MacIndoe Plumbing and Heating, Inc., a corporation, as "MacIndoe." John M. MacIndoe, dba John M. MacIndoe Plumbing and Heating, was dismissed as a party by the trial court and no error is assigned thereto.
Plaintiff sought to recover damages for alleged injuries to his neck which injuries he claimed resulted from the negligence of defendants on January 12, 1953 (a Monday) at about 9:00 A.M. when he drove his automobile into an unmarked excavation on a public highway in the City of Pueblo, Colorado.
In Pueblo v. Ratliff, 131 Colo. 381, 281 P.2d 1021, a judgment of $35,000.00 in plaintiff's favor, awarded after a jury trial, was reversed because of error in the record. A second trial resulted in a hung jury. This writ of error is directed to the third trial where the jury awarded plaintiff $37,500.00. Motions for new trial were overruled and Pueblo urges several grounds for reversal, only one of which we need here consider; namely, that the City had no actual or constructive notice of the excavation, therefore it has no liability.
Defendant MacIndoe urges for reversal:
1. That the verdict is excessive.
2. That there is insufficient evidence to support the verdict and thus it is contrary to the law; and
3. That there were "Errors in law" — meaning thereby the admission of certain testimony of a garage mechanic and of plaintiff, the asking of a question to which objection was later sustained, and errors in giving and refusing instructions to the jury.
It appears that plaintiff was a watchmaker by trade, over 44 years of age, and operated his own business which he had built up to where he was making $200.00 per month at the time of the accident. On the morning in question he had parked his automobile facing west in the one hundred block of West Second Street. This was just off Santa Fe Avenue. He proceeded to walk the entire length of the sidewalk area on both sides of the one hundred block and crossed the street at both ends of the block. After returning to his car he pulled out of the parking place and drove west on Second Street a distance of approximately a hundred feet, at a speed of about 20 miles per hour. The weather was clear but there had been some snow a day or two earlier. Plaintiff testified that a car was trying to park across the street and that an oncoming automobile pulled to his side of the street going east; that as he watched this car and pulled to his right he drove into the excavation in question. Conflicting testimony disclosed that the excavation was visible anywhere from "even with the hole" to over forty feet away. Plaintiff did not apply his brakes before the accident, claiming he did not see the hole before he struck it. The excavation was a cut in the pavement approximately two feet square at its top and seven to twelve inches deep.
The record discloses conflicting testimony as to whether MacIndoe had secured the required permit from the City prior to making the excavation in question on December 22, 1952. All of the many witnesses for the City, who testified on this point, denied there had been any request, oral or written, until the day of the accident. This is verified by its records. The only evidence to the contrary was MacIndoe's witness who testified that a telephone call had been made December 22, 1952, in an emergency situation to secure such permission, but it was admitted there was no timely securing of the written consent as required by ordinance. The record also discloses that when MacIndoe did apply for and obtain a permit on January 12th, the permit issued was back dated to January 2nd. Such improper action of course could not bind the City.
From the date of the excavation until the accident MacIndoe, whose office was close by and whose employees had the opportunity to observe the excavation, had filled and backfilled the hole several times because it had settled. The dates of these fillings do not appear in the record. Many City employees, whose duty it was to report defects in the streets, passed the spot on this busy street several times a day from the time of the original excavation until the accident, yet all testified they saw no hole which would constitute a defect.
Even if the hole had been last re-filled a day or two before the accident, the fact that it had stormed during the same period, resulting in moisture in the excavation, might have resulted in a settling of the dirt over the weekend, or passing automobiles kicking out the dirt may have resulted in the condition as testified to by the plaintiff. To establish constructive notice the burden was on plaintiff to show that the defect which caused the accident existed as a hazard for such period of time prior to the accident as to charge the City with knowledge of its dangerous condition. This he failed to do. He did not prove that a dangerous condition existed at any time when City employees passed that way, or that the particular defect resulting in the injury had existed for a period of time sufficient to charge the City with constructive notice. Evidence that the excavation was re-filled a number of times tends to establish that the hazard was corrected and its recurrence would only be material from the date of its last re-filling. The plaintiff failed to establish that date.
Though questions of negligence and contributory negligence are generally within the province of the jury, where the liability of the City depends upon proof of notice, either actual or constructive, and evidence thereof is lacking or insufficient, the question becomes one of law. The facts here persuade us that proof that the City had actual or constructive notice of the defect involved is insufficient to justify a judgment against the City, and the trial court should have directed a verdict for defendant City. See City and County of Denver v. Farmer, 125 Colo. 462, 244 P.2d 1086. We point out that it is not every excavation that constitutes a defect sufficient to put a City on notice.
In view of plaintiff's failure to prove either actual or constructive notice the action must be dismissed as against the City, and it is not necessary to consider other issues urged by Pueblo for reversal. Accordingly we proceed to consider the errors alleged by defendant MacIndoe.
At the first trial the record disclosed that the extent, if any of plaintiff's permanent injuries was left to the conjecture of the jury, there being no proper basis upon which the jury could have awarded damages for impairment of earning capacity. At the third trial the evidence, sometimes disputed in pertinent part, disclosed his age and a life expectancy of 25.27 years; his present earnings, and an opportunity to go to work for another watchmaker for $75.00 per week; that he is 100% disabled to do watchmaking due to his injury, a cervical disk neck injury, and competent testimony that an operation might not alleviate his condition and in fact could, if unsuccessful, result in a partial paralysis. We cannot say that under these facts a verdict of $37,500.00 was not adequately supported by the evidence or was excessive. An award of $33,918.00 was affirmed by this court and not deemed excessive for a similar injury in Thomas v. Dunne, 131 Colo. 20, 279 P.2d 427. In Riss and Co. v. Anderson, 108 Colo. 78, 114 P.2d 278, the court affirmed a judgment of $25,303.50 for permanent injuries causing prolonged suffering and severe pain consisting of lacerations and thigh fractures, resulting in the shortening of one leg and which disqualified the victim from continuing the same kind and character of work in which he had been employed.
MacIndoe urges that a U.S. Government disability pension received by Ratliff for a 30% disability in the amount of $40.00 per month for a heart condition resulting from service in World War II should have been valued and deducted by the jury from its award. We do not agree. There is no relation between plaintiff's present injury and his wartime disability. Such benefits cannot, under the facts, serve defendant in mitigation of damages. Even damages paid by insurance companies to an injured party, to which the wrongdoer did not contribute, could not diminish an award. Carr v. Boyd, 123 Colo. 350, 229 P.2d 659.
This court has held that when nothing appears in the record to indicate that a verdict was the result of prejudice, partiality or obvious mistake, the assessment of the damages in within the exclusive province of the jury under proper instructions. Ison v. Stewart, 105 Colo. 55, 94 P.2d 701; Clark v. Hicks, 127 Colo. 25, 252 P.2d 1067. Also that the question of whether the jury's verdict is excessive is peculiarly within the province of the trial judge to determine, and no mere difference of opinion, however diverse, justifies interference with the verdict by the appellate court on the ground that the damages awarded are excessive. Edwards v. Quackenbush, 112 Colo. 337, 149 P.2d 809; Thomas v. Dunne, supra. See also 3 Am. Jur. 453, § 893. In the light of these principles, and from our consideration of the record before us, we are unwilling to say that the trial court abused its discretion in permitting the verdict to stand.
The disputed facts relating to the accident itself and to the award were exclusively within the province of the jury to determine. As against defendant MacIndoe they are sufficient to support the verdict and will not be disturbed.
Part of MacIndoe's third assignment of error relates to the admission of the testimony of one Cleland who was permitted to testify as to his conclusions as to the cause of the damage to plaintiff's automobile. Cleland was the mechanic who repaired plaintiff's car after the accident. After being properly qualified and describing the damages and their repair he was asked this question: "Presuming this automobile did drop in the hole, how deep would that hole have to be to have caused this particular damage?" Defendant's objection was overruled and the witness was permitted to answer.
We perceive no error in the admission of this testimony. In the first place the evidence as to how the injury to Ratliff occurred was not controverted. Here Cleland's testimony was to the effect that the damage to the car was caused by a certain depth of a hole. This related only indirectly to plaintiff's injury. Where the opinion expressed has no bearing on the ultimate facts as to whether a hole existed, whether Ratliff negligently drove into it, and whether he was injured, then the answer to the question cannot be prejudicial and so is not error. See Thomas v. Dunne, supra, and Ison v. Stewart, supra.
In civil actions a witness who possesses special skill or knowledge of the subject matter may state his opinion where the facts are such that inexperienced persons are likely to prove incapable of forming a correct judgment without the assistance of such as opinion. The question whether admission of an opinion of an expert is proper and whether he is qualified, as well as the determination of the competency or incompetency of non-expert opinion evidence, rest largely in the discretion of the trial judge. 5 Am. Jur. 859, § 648. But an expert witness cannot give his opinion that an injury was inflicted in a certain manner, if the manner in which it was inflicted, or its extent, is controverted.
Even if this were not so there is another reason why witness Cleland could answer. In general there are two distinct classes of cases in which expert testimony is admissible as is said in 20 Am. Jur. 648, § 776:
"* * * In one class are those cases in which the conclusions to be drawn by the jury depend on the existence of facts which are not common knowledge and which are peculiarly within the knowledge of men whose experience or study enables them to speak with authority upon the subjects in question. In the other class are those cases in which the conclusions to be drawn from the facts stated, as well as knowledge of the facts themselves, depend on professional or scientific knowledge not within the range of ordinary training or intelligence. The distinction between these two classes of cases is self-evident. In the former class of cases, the facts are to be stated by the experts and the conclusion is to be drawn by the jury. In the other group of cases, the expert states the facts and gives his conclusion in the form of an opinion which may be accepted or rejected by the jury. If the knowledge of experts consists of descriptive facts which can intelligently be communicated to others not familiar with the subject, the case belongs to the first class. If the subject is one as to which expert skill or knowledge can be communicated to others not versed in the particular science or art only in the form of reasons, arguments, or opinions, then the case belongs to the second class."
Here Cleland's testimony had described the damage to the right front wheel, engine, radiator and running board. His experience was such as to enable him to state with reasonable accuracy the depth of a hole it would require to drop the car sufficiently to strike the running board. These facts bring his testimony within the rule that the opinion was properly expressed and the jury could accept or reject it as it deemed proper.
We have considered the other points urged for reversal, including objections to the giving and rejection of certain instructions, and consider them to be without merit.
The judgment is affirmed as to defendant MacIndoe Plumbing and Heating, Inc., a corporation, and reversed as to Pueblo, a Municipal Corporation, with instructions to dismiss the action as to the latter.
MR. JUSTICE MOORE, MR. JUSTICE HALL and MR. JUSTICE FRANTZ dissenting.