This was an action to recover damages for injuries received by the plaintiff's intestate, Du Bose, from a fall caused by a defective sidewalk in the city of Washington. In 1873 the board of public works of the city caused the grade of the carriage-way of Thirteenth street, between F and G streets, to be lowered several feet. The distance between the curbstone of the carriage-way and the line of the adjacent building was 36 feet. At the time the accident to the deceased occurred, this portion of the street sidewalk it may be termed, to designate it from the carriage-way, although only a part of it is given up to foot passengers-was, for 48 feet north of F street, lowered in its whole width to the same grade as the carriage-way. But, for some distance beyond that point, only 12 feet of the sidewalk was cut down, thus leaving an abrupt descent of about 2 feet at a distance of 12 feet from the curb. At this decent-from the elevated to the lowered part of the sidewalk-there were 3 steps, but the place was not guarded either at its side or end. Nothing was placed to warn foot passengers of the danger.
On the night of February 21, 1877, Du Bose, a contract surgeon of the United States army, while walking down Thirteenth street, towards F street, fell down this descent, and, striking upon his knees, received a concussion which injured his spine and produced partial paralysis, resulting in the impairment of his mind and ultimately in his death, which occurred since the trial below. The present action was for the injury thus sustained. He was himself a witness, and it appeared from his testimony that his mind was feeble. His statement was not always as direct and clear as would be expected from a man in the full vigor of his mind. Still it was not incoherent, nor unintelligibel, but evinced a full knowledge of the matters in relation to which he was testifying. A physician of the government hospital for the insane, to which the deceased was taken two years afterwards, testified that he was affected with acute melancholy; that sometimes it was impossible to get a word from him; that his memory was impaired, but that he was able to make a substantially correct statement of facts which transpired before the injury took place, though, from the impairment of his memory, he might leave out some important part; that there would be some confusion of ideas in his mind; and that he should not be held responsible for any criminal act. A physician of the Freedmen's hospital, in which the deceased was at one time a patient after his injuries, testified to a more deranged condition of his mind, and that he was, when there in June, 1879, insane. He had attempted to commit suicide, and had stuck a fork into his neck several times. Upon this, and other testimony of similar import, and the feebleness exhibited by the deceased on the stand, the counsel for the city requested the court to withdraw his testimony from the jury, on the ground that his mental faculties were so far impaired as to render him incompetent to testify as a witness. This the court refused to do, but instructed the jury that his testimony must be taken with some allowance, considering his condition of mind and his incapacity to remember all the circumstances which might throw some light on his present condition. This refusal and ruling of the court constitute the first error assigned.