Stafford v. City of Oskaloosa

Citation11 N.W. 668,57 Iowa 748
PartiesSTAFFORD v. THE CITY OF OSKALOOSA
Decision Date24 March 1882
CourtUnited States State Supreme Court of Iowa

Appeal from Mahaska Circuit Court.

ACTION to recover damages for personal injuries sustained by plaintiff, on account of an obstruction in a street of the city, which caused plaintiff to be thrown from a sleigh in which he was riding. There was a verdict and judgment for plaintiff in the sum of $ 5,500. Defendant appeals.

REVERSED.

M. E Cutts, T. H. Davenport and Lafferty & Johnson, for appellant.

John T Lacy and Bolton & NcCoy, for appellee.

OPINION

BECK, J.

I.

A sleigh in which plaintiff was riding with a friend, in the city of Oskaloosa, was turned over by a small mound in the street, which had been made by the street commissioner depositing the earth removed in cleaning the street crossing. Plaintiff suffered very severe injuries by the fall, from the fracture of a bone of the thigh, which will, probably, cause him to be a cripple for life. There is no dispute, or at least no conflict in the evidence as to plaintiff's injuries, and as to the fact that the sleigh was turned over by reason of being driven upon the little mound of earth. The contention of the parties involves the negligence of the defendant in permitting the mound to remain, and the want of care of plaintiff's friend, who was, at the time, driving the horse hitched to the sleigh. Various objections to the judgment, based upon alleged erroneous rulings of the court are discussed by counsel. Those which we think demand our attention will be considered in the order we find them discussed in the printed argument of defendant's counsel.

II. Counsel insist that the evidence fails to support the verdict, especially that there was no sufficient proof of defendant's negligence and plaintiff's care. We cannot concur in this conclusion, but are of the opinion that there was evidence upon these branches of the case sufficient to authorize the jury, in the exercise of their discretion, without passion or prejudice, to find for plaintiff.

III. The court in the first instruction informs the jury that plaintiff claims damages in the sum of $ 15,000, and in another instruction directs them that their verdict may be in any sum less than $ 15,000. The original petition claims damages in the sum of $ 5,000. An amended petition for the same injuries, set out in the original petition, claims to recover $ 10,000. There is no allegation that the sum claimed in the amended petition is in addition to the claim first made. Indeed, the language of the last pleading is to be understood as alleging that the claim for $ 10,000 damages covers all the injuries sustained by plaintiff. The court therefore erred in the instructions referred to above. It may not clearly appear that the error in fact wrought direct and certain prejudice to defendant. To authorize us to disregard the error it should clearly appear that no prejudice resulted therefrom. See case cited in 2 Withrow & Stiles' Digest, p. 813, section 162. In view of the fact that the judgment must be reversed on other grounds, we need not determine whether the record fails to show that no prejudice resulted from the error.

IV. An instruction holds that it is the duty of the city to keep its streets, which are opened to public use, in a reasonably safe condition "for the entire width thereof from sidewalk to sidewalk." This rule we think is correct. See Rusch v. Davenport, 6 Iowa 443; 2 Thompson on Negligence, 766. If a street be opened for public travel for but a part of its width and the other part is not in a condition to be used by the public, the city would not be chargeable with negligence for failing to improve the whole of the street, or for accidents occurring to those attempting to use the part not improved. But no such case is presented by the record before us. The street for its whole width was opened for public travel. It was, therefore, the duty of the city to keep it reasonably safe for its entire width.

V. In the eighth instruction the jury were directed to consider, in estimating damages, the expenses incurred by plaintiff for his treatment by surgeons and physicians. There was no evidence whatever tending to show the expenses so incurred by plaintiff. The instruction, therefore, in authorizing the jury to allow damages for such expenses is erroneous. See Reed v. C., R. I. & P. R. Co., ante, p. 23.

VI. Evidence was introduced tending to show that plaintiff's friend, who was driving when the accident happened, was habitually a careless driver. In the second instruction asked for by plaintiff, the jury are informed that the evidence was admitted to show notice to plaintiff of his friend's careless manner of driving. We think the evidence was not admitted for that purpose, for if the driver was negligent plaintiff could not have recovered whether he did or did not have notice of prior negligence, or habits of negligence, of the driver. The fourth instruction expresses the thought that the knowledge of plaintiff of the careless habits of the driver was an element to be...

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