Martin v. Siller

PLUMMER, J.

Plaintiff had judgment in the sum of $5,000 for an injury to his left eye causing the entire loss of sight thereof, by reason of coming into collision with an iron pipe in a curtain which rolled down over a marquee along the west side of premises belonging to the defendant known as the Lenhart Hotel. From this judgment the defendant appeals.

The complaint alleges and the testimony of the plaintiff is to the effect that on the afternoon of the 24th day of August, 1935, he and one Harry Newcombe were walking in a southerly direction along the sidewalk on the east side of Ninth Street between streets known as K and L in the city of Sacramento; that the building and premises of the defendant known as the Lenhart Hotel, front on the sidewalk upon which plaintiff was walking. Attached to the front of the hotel premises at some distance above the sidewalk and extending out about three-quarters of the width of the sidewalk was a solid marquee. This marquee extended along the entire front of the hotel premises. At the outer edge a canvas curtain was installed which rolled up and down upon a roller attached to the marquee. At the lower edge of the curtain was a hem and inside the hem was a one-half inch hollow iron pipe.

The plaintiff’s testimony is further that as he and Harry Newcombe were walking along engaged in conversation, he was suddenly stopped short by the lower corner of the curtain and end of the pipe striking his left eye. The canvas over the end of the pipe was worn, so that a portion of the

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pipe was exposed. The plaintiff testified that his eye was injured to such an extent by his contact with the exposed portion of the pipe that he lost the sight thereof.

There is no denial of the fact that the curtain just referred to maintained by the defendant was in contravention of an ordinance of the city of Sacramento, in that it came within the prohibited distance of the sidewalk. No question is made that the damages awarded are excessive and no issue is raised as to the fact that the plaintiff has lost the sight of his left eye. The only real question presented by the record is based upon, the theory that the injury could not have been caused by the left eye of the plaintiff coming in contact with the iron pipe. This theory is based upon the testimony of some physicians, to the effect that the injury must have been caused by some slight projecting metal or instrumentality not over the size of a pinhead. The total depth of the injury to the eye is not over one-fifth of an inch, and the testimony of the physicians was to the effect that the instrument with which the plaintiff came in contact must have had what was called a “spine” or “spicule” of the size of an ordinary pinhead. It was argued from this that as there was no specific testimony to the effect that there was a spine or spicule of the size of a pinhead on the end of the iron pipe, therefore, that the injury to the plaintiff's eye must have been occasioned by some other instrumentality. This is illustrated by the following question and answer: “Q. And into the lens itself, Doctor, and, this wound wasn't made by a pipe unless it was—unless there was a sharp prong or pin or nail or something of that sort in the pipe, was it, Doctor? A. No.” The same witness further testified that the wound was a triangular puncture. Two witnesses who examined the pipe with which the plaintiff claimed to have come in contact, testified in substance as follows: That the end of the pipe was jagged, sort of triangular shape; that the pipe had been cut and left with the edges rough, not filed down or smoothed in any way. There is further testimony in the record to the effect that an instrument less than one-fifth of an inch in length would cause a penetration of the- eye farther than that distance. The testimony in the' record further shows that the wound to the eye was perhaps the size of a pinhead. One of the doctors, after testifying that