it is held that there was no error in the rulings on the admission of evidence and that the damages awarded for a trespass are not excessive. Action in the district court for Dakota county to restrain the village of Farmington, E. J. Chapel and J. H. McAndrews, from entering upon plaintiff's land and constructing a street and for $1,000 damages. The case was tried before Johnson, J., and a jury which returned an affirmative answer to the question whether defendant village lost the easement as a street through the adverse possession by plaintiff for 15 years prior to March 18, 1899, and assessed the damages of plaintiff at $300. From an order denying their motion for a new trial, defendants appealed. Affirmed. Converse & Grannis and Earl C. Wilmot, for appellants. BUNN, J. This action was brought to restrain defendants from entering upon plaintiff's lands, grading a street thereon, or otherwise trespassing, and to recover damages for a trespass already committed. The issues of fact were by consent tried to a jury, the questions submitted being whether the defendant village had lost its easement in the street in front of plaintiff's premises by adverse possession for 15 years prior to March 18, 1899, and what if any damages plaintiff had sustained by reason of the trespass of defendants. The jury answered the first question in the affirmative, and fixed the damages at $300. A motion for a new trial was denied and defendants appealed from the order. The facts, so far as material to the questions raised on this appeal, are as follows: In 1873 plaintiff became the owner of the west 120 feet of block 6, Humphrey's Addition to the village of Farmington. On the plat Fifth street runs north and south along block 6 on the westerly side. The premises abut on Oak street on the south. Two unplatted tracts adjoin block 6 to the north. to be 80 feet wide, along block 6, unplatted property to the north. Fifth street appears on the plat but only 40 feet wide along the In 1873 plaintiff entered into possession of the property, built a residence thereon and inclosed the whole with a substantial fence; the fence on the west was placed along the center line of Fifth street and on a line with the west line of the unplatted land lying directly north. Plaintiff planted trees just inside of this fence, and used the 40 foot strip as a part of his homestead from 1873 to the time the trespass occurred. As it is not argued that the evidence does not sustain the finding that plaintiff acquired title by adverse possession, we omit further details of the evidence tending to show such possession. It is clear that this contested strip was never opened up or traveled as a street, and the village never made an attempt to grade or improve it until its officials committed the trespass complained of. In June, 1912, defendants entered upon the disputed strip, cut down three large maple trees planted by plaintiff in 1873, and plowed up the lawn, claiming that it was the intention to open that part of Fifth street for public use and travel. The assignment of error in denying a new trial because the verdict is not justified by the evidence is not urged in the brief and is waived. Error is claimed in a ruling of the trial court sustaining an ob jection to questions asked the witness Larson as to who paid for a sidewalk laid in 1907 along Oak street and across Fifth street. The object was to show that plaintiff had refused to pay for, and presumably that the village had paid for, that part of the walk that crossed the disputed strip. But the record clearly shows that the witness had already testified that plaintiff refused to pay for this portion of the walk, and that he paid only for 124 feet. Plaintiff did not deny this. The only fact that could have a bearing on the case was therefore in evidence, and it was clearly immaterial who paid for the walk as long as plaintiff did not. There was no error in excluding the testimony. The same question was asked of another witness, and for the same reason it was not error to sustain the objection. It is argued that the damages are excessive. We hold they are not. Order affirmed. EMMA WEIDE v. CITY OF ST. PAUL.1 July 17, 1914. Nos. 18,754-(192). Defective sidewalk -notice of defect. 1. Plaintiff sustained injuries from the giving way of a city sidewalk. There is sufficient evidence that the sidewalk was defective and that the city had constructive notice thereof in time to have repaired it before the accident, and that the defendant was accordingly negligent. Directed verdict. 2. The validity of chapter 245, Laws 1913, which prohibits the trial court from directing a verdict, is not involved in this case. The court could not properly have directed a verdict, had there been no such statute. Damages. 3. The damages are not excessive. Action in the district court for Ramsey county to recover $5,000 for injury to plaintiff received while walking upon a sidewalk in defendant city. The case was tried before Catlin, J., who granted plaintiff's motion to dismiss the action against the defendant insurance company and denied defendant city's motion for a directed verdict in its favor, and a jury which returned a verdict for $3,000 in favor of plaintiff. From an order denying its motion for judgment notwithstanding the verdict or for a new trial, defendant appealed. Affirmed. O. H. O'Neill, John I. Burns and William J. Giberson, for appellant. Wickersham & Churchill, for respondent. 1 Reported in 148 N. W. 304. Note. The question of notice to municipality of claim and cause of injury from defects or obstructions in street is discussed in a note in 20 L.R.A. (N.S.) 757. And upon the validity of the requirement of notice of injury as condition of municipal liability, see note in 36 L.R.A. (N.S.) 1136. HALLAM, J. Plaintiff was walking along a cement sidewalk on an unfrequented' street in the city of St. Paul. She carried her four months' old. child in her arms. Her evidence shows that the tiles gave way beneath her and she fell down an embankment into the adjoining lot, a distance of six to eight feet, and sustained injuries. The jury returned a verdict for plaintiff for $3,000. Defendant appeals from an order denying its alternative motion for judgment or for a new trial. 1. There is ample evidence of negligence on the part of the city. The sidewalk was defective. It would not sustain the weight of a pedestrian. The city was chargeable with notice of the defect. There is no evidence that any officer or employee of the city had actual knowledge of the defect. There is evidence, however, that the walk was close to the edge of an embankment, that the supporting soil, which was of sand and gravel, had fallen away for a considerable distance so that there was a hollow under the walk for almost the width of a paving block, and that this particular condition had existed for two months before the accident. In addition to this, the walk presented a neglected appearance, the blocks were separated with grass and weeds growing up between them. This evidence was sufficient to warrant the jury in finding that the city had constructive notice of the defect and that, by the exercise of ordinary care in inspection,. the city authorities might have discovered the unsafe condition of the walk in time to repair it before the accident. This settles the question of the city's liability. Miller v. City of St. Paul, 38 Minn. 134, 36 N. W. 271; City of Wabasha v. Southworth, 54 Minn. 79, 87, 55 N. W. 818. 2. Defendant assails the constitutionality of chapter 245, p. 336, Laws 1913 (G. S. 1913, § 7998), which prohibits the trial court from directing a verdict. We are not concerned with this question. Had there been no such statute the court could not properly have directed a verdict. The statute, therefore, plays no part in the case. Defendant urges that at the time the motion to direct a verdict was made, plaintiff had made out no cause of action, because the notice to the city of plaintiff's claim had not been introduced in evidence. This evidence was offered and received before submission of the case to the jury. This obviated any error from the previous denial of the motion. The denial of a motion to dismiss or of a motion for judgment will never be reversed in this court if evidence sufficient to sustain the respondent's case is received at any time during the trial. Cole v. Curtis, 16 Minn. 161 (182); Ingalls v. Oberg, 70 Minn. 102, 72 N. W. 841. 3. It is contended that the damages are excessive. Plaintiff was a married woman, 22 years old, possessed of normal health and strength. Her injury was primarily a nervous shock, but it was admittedly severe. One of defendant's expert physicians testified that at the time of the trial, nearly five months after the accident, plaintiff was suffering from a functional nervous disease and was unable to do any work. On behalf of plaintiff there was evidence that she had suffered from nervous convulsions indicative of major hysteria, epileptiform in character; that she had grave nervous disturbance; that she suffered from dizziness, wasting of flesh, lack of strength, and some pain; that she would probably make a fair recovery, but would be incapacitated for some time to come. It is not easy to measure such damages in money. The amount allowed seems large, but the trial judge saw the plaintiff and heard the testimony and was in much better position than this court is to determine the extent of her injury. He has approved the verdict and we shall not disturb it. Order affirmed. |