Alline v. City of Le Mars

• Citation: 33 N.W. 160,71 Iowa 654
• Parties: ALLINE v. THE CITY OF LE MARS
• Decision Date: 13 June 1887
• Court: United States State Supreme Court of Iowa

33 N.W. 160

71 Iowa 654

ALLINE v. THE CITY OF LE MARS

Supreme Court of Iowa, Des Moines

June 13, 1887

Appeal from Woodbury District Court.

As the plaintiff claims, she stepped into a hole in the the street near a sidewalk on which she was walking, whereby she was greatly injured. Trial by jury. Judgment for the defendant and the plaintiff appeals.

AFFIRMED.

Joy, Wright & Hudson, for appellant.

G. W. Argo and Ira F. Martin, for appellee.

OPINION

SEEVERS, J.

The plaintiff testified that in August, 1883, she was walking on a sidewalk on one of the streets in the city of Le Mars, about 8 o'clock in the evening. "It was dark, but not so dark but I could see. It was not as light as dusk, but it was light enough so that I could see those that passed me. * * * I had paused to bid the lady that was with me good evening, and, as I paused, I saw two gentlemen coming, and at first I did not recognize them, and as they passed I just stepped aside to let them pass, and I stepped into this hole. This hole was close up to the sidewalk. There was no earth between the hole and the sidewalk, and the hole ran down under the walk."

Such being the evidence, the question is whether the plaintiff is entitled to recover, and we think she is not. There is some evidence tending to show that the sidewalk was not level, but that it slanted in the direction of the hole. The plaintiff, however, does not claim that this caused her to step from the sidewalk into the hole. She was standing on the walk, and, if she had so remained, it is clear she would not have been injured. She voluntarily, and without necessity for so doing, stepped from the walk without knowing she could do so with safety. She gives no explanation whatever why she stepped from the walk, which was her proper place. We think she was clearly guilty of such negligence as will prevent her from recovering. McLaury v. City of McGregor, 54 Iowa 717, 7 N.W. 91.

II. Objections are made to the instructions of the court, and it is said counsel for the defendant made an improper argument to the jury. We are not by any means sure the objections to the instructions are well taken; on the contrary, we incline to think they are not; but we feel satisfied, conceding that the objections are well taken, that the defendant was not prejudiced thereby, or by what was said by counsel, for the reason that in no event was the plaintiff entitled to recover.

AFFIRMED.