Achey v. City of Marion
| Decision Date | 18 November 1904 |
| Citation | 101 N.W. 435,126 Iowa 47 |
| Parties | ADDIE ACHEY, Appellee, v. CITY OF MARION, Appellant |
| Court | Iowa Supreme Court |
Appeal from Linn District Court.--HON. J. H. PRESTON, Judge.
ACTION to recover damages for a personal injury. Plaintiff alleges that Thirteenth street is one of the public thoroughfares of the defendant city, and is paved with asphalt. She claims that about July 1, 1902, the defendant carelessly and negligently erected, and thereafter, and down to the time of her alleged accident and injury, maintained, a wooden approach from the street paving on said street to the west curb thereof; that said approach was about five feet in length, the west end resting upon the curbstone, and the east end resting upon a piece of timber four inches square, which in turn, rested upon the top of the street paving. She further says that on the night of July 30, 1902, while she was walking across Thirteenth street from the east toward said approach, she struck her foot against the street end thereof, causing her to fall violently upon the platform of said approach; that no light had been provided at the crossing of said street, and that she did not see said approach, or know of its existence; that her fall was without negligence on her own part. She then alleges bodily injuries pain, and mental anguish as a result of such fall. The defendant denied generally. From a verdict and judgment in favor of plaintiff, the defendant appeals.
Affirmed.
Voris & Haas, for appellant.
F. L Anderson and Smith & Smith, for appellee.
I. Appellant complains of errors alleged to have been committed in connection with the introduction of the evidence, and we notice such thereof as are presented in argument. Mrs. Jack, a witness for plaintiff, having testified that she lived on the corner of Thirteenth and the intersecting street, said that the approach in question was put in some time in July, and that it remained there two or three weeks. She then said that the husband of plaintiff called upon her, and told her of the injury to his wife; that at the time of such call the approach had been taken down. She was then interrogated as to the time it was taken down with reference to the time plaintiff was said to have been injured, and she was allowed to answer over the objection of defendant. We think that in this there was no error. Evidently plaintiff was seeking to prove by the witness that she was familiar with the original construction of the approach, that it was dangerous, and that the danger continued down to and after the accident complained of. That such was proper there can be no doubt. While it is not competent to prove negligence on the part of a city by showing changes or repairs in a sidewalk made subsequent to an alleged accident, yet it does not follow that evidence otherwise competent must be rejected because incidentally it may be made to appear that a change had subsequently taken place. In this case the prejudice, if any there was, could have been corrected by an instruction; but none was asked on the subject. What has just been said has equal application to the evidence of J. F. Jack and George Bowman, objected to for a like reason.
Plaintiff, in rebuttal, also introduced several witnesses to testify as to changes in the approach made after the alleged accident, and they were allowed to testify over the objections of defendant. As defendant, in making out its case, had introduced in evidence photographs of the street showing the approach, it was competent for plaintiff to show in rebuttal what, if any, changes had taken place or had been made between the time of the accident and the time of taking the photographs. We understand this was the purpose of the evidence objected to, and we think it was proper.
II. In the eighth instruction the court told the jury that, if plaintiff was found entitled to recover, "you will allow her * * * for all such pain and anguish you find from the evidence it is reasonably certain she will suffer in the future." Of this instruction appellant complains, and for the reason that there was no evidence making it reasonably certain that the plaintiff's injuries were permanent. Evidently counsel for appellant have misconceived the purpose and scope of the instruction. As we read it, it assumes that there may be a finding that pain and suffering on the part of plaintiff will continue for some time...
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