Volume 51 — Washington Reports, Second Series

[1] NUISANCE — MUNICIPAL CORPORATIONS — CREATION OF NUISANCE BY MUNICIPAL ORDINANCE. A municipal ordinance may not make a thing a nuisance unless it is in fact a nuisance. [2] SAME. The failure to have an intermediate handrail on a hotel stairway did not constitute a public nuisance, notwithstanding a 1942 city ordinance providing that such failure shall be deemed a public nuisance, where, at the time of the accident, the stairway had been in constant use by the public for almost thirty years. [3] TRIAL — APPEAL AND ERROR — INSTRUCTIONS — EXCEPTIONS — NECESSITY. A failure to except to instructions on a theory which there was no evidence to support and which should not have been submitted to the jury, does not preclude a litigant who has called the insufficiency of the evidence to the trial court's attention by appropriate motions, from contending on a motion for judgment n.o.v. and in the supreme court that the case should not have gone to the jury. [4] NUISANCE — ACTIONS — EVIDENCE — SUFFICIENCY. In an action for personal injuries sustained in a fall while the plaintiff was walking down a hotel stairway, held that the theory of nuisance was without any support in the evidence and should not have been submitted to the jury. [5] NEGLIGENCE — ACTIONS — EVIDENCE — SUFFICIENCY — MAINTENANCE OF HOTEL STAIRWAY. In an action for personal injuries sustained in a fall while the plaintiff was walking down a hotel stairway, held that the evidence was sufficient to take the issue of negligence to the jury. [6] SAME — INSTRUCTIONS. In such an action, the jury was properly instructed that if it found that the conduct of the defendant in<page_number>Page 19</page_number> maintaining and lighting the stairway caused the injuries complained of, their verdict must be for the plaintiff, unless it found that she was contributory negligent. [7] DAMAGES — INSTRUCTIONS — PERSONAL INJURIES — PRIOR PHYSICAL AILMENTS OR DISABILITY. In an action for personal injuries, an instruction was prejudicially erroneous to the plaintiff and the trial court was justified in granting a new trial, where the instruction stated that the plaintiff was not entitled to recover for any physical ailment or disability which may have existed prior to the accident; since, there being no evidence that the plaintiff suffered from any disability prior to the accident, the jury was invited to speculate about prior physical ailments or disability. [8] NEW TRIAL — NATURE AND SCOPE OF REMEDY — NEW TRIAL AS TO PART OF ISSUES. A new trial may be, and under proper circumstances should be, limited to the amount of damages only; but the right so to limit the issues should be exercised only when justice does not require the resubmission of the whole case to the jury. [9] SAME. Where liability is clearly shown, the issue of damages alone can be tried out without injustice to either party; however, where the inadequacy of damages is coupled with a very close case on the issue of liability and the theory of nuisance was erroneously submitted to the jury as a basis of liability, justice requires a new trial upon the entire case. [10] DAMAGES — INSTRUCTIONS — PERSONAL INJURIES — MENTAL SUFFERING. In an action for personal injuries, the matter of the mental suffering endured by the plaintiff was adequately covered by an instruction which stated that "you should take into consideration . . . the pain and suffering, if any, you find she has endured or will in the future endure . . ."; since the pain and suffering referred to therein connote both physical and mental suffering. [11] TRIAL — INSTRUCTIONS — REQUESTS — MATTERS COVERED BY OTHER INSTRUCTIONS. It was not error to refuse to give a requested instruction which was both slanted and argumentative, and contained nothing which had not been covered in another instruction. [1] See 37 Am. Jur. 808.