Bailey v. City of Centerville

• Court: United States State Supreme Court of Iowa
• Writing for the Court: SHERWIN
• Citation: 115 Iowa 271,88 N.W. 379
• Parties: BAILEY v. CITY OF CENTERVILLE.
• Decision Date: 21 December 1901

115 Iowa 271
88 N.W. 379

BAILEY
v.
CITY OF CENTERVILLE.

Supreme Court of Iowa.

Dec. 21, 1901.

Appeal from district court, Appanoose county; Robert Sloan, Judge.

Action to recover damages for a personal injury. There was a trial to a jury, and a verdict and judgment for the plaintiff. The defendant appeals. Affirmed.

[88 N.W. 379]

Mabry & Payne, for appellant.

C. F. Howell, for appellee.

SHERWIN, J.

The appellant contends that the evidence of the plaintiff and of her husband shows conclusively that she was guilty of contributory negligence in passing over the walk where she was injured. The evidence tends to show that the walk was in an unsafe condition for some distance in each direction from the particular point where the accident happened, and that the plaintiff had frequently passed over it, and knew that it was sadly out of repair. In addition to this, however, it is shown that there was no other safe way for her to reach her destination, and that she did not know of the particular defect that caused her injury, and that she was at the time exercising great care. The fact that a person travels over an unsafe sidewalk, with knowledge of its general condition, does not, alone, establish contributory negligence on her part. Cosner v. City of Centerville, 90 Iowa, 33, 57 N. W. 636. In that case it was shown not only that the plaintiff knew of the danger, but that he might have avoided it. The reverse is shown in the case at bar. The question was therefore properly submitted to the jury. Nichols v. Town of Laurens, 96 Iowa, 388, 63 N. W. 335.

The plaintiff and her husband were together on the walk at the time of the accident, returning home from church; and he stepped upon the end of a loose board, which flew up and tripped her. The defendant asked instructions to the effect that, if the

[88 N.W. 380]

husband was negligent, the plaintiff could not recover. In Yahn v. City of Ottumwa, 60 Iowa, 429, 15 N. W. 257, a recovery by the wife, who was injured by the negligent driving of her husband, was denied. In Nesbit v. Town of Garner, 75 Iowa, 314, 39 N. W. 516, 1 L. R. A. 152, 9 Am. St. Rep. 486, it is said that the holding in the Yahn Case is based upon the thought that the wife was under the care of the husband, and was distinguishable from the case then under consideration for that reason. All of the Iowa cases to which our attention has been called that involve the question of imputable negligence are cases where an injury resulted from careless driving of a private conveyance. The general rule as to such negligence, now almost universally adopted, is in line with the holding in the Nesbit Case. 1 Thomp. Neg. (2d Ed.) § 502. In Shear. & R. Neg. (5th Ed.) § 67, it is said: “Under the rule of the common law, which denied the wife any right to bring an action separately from the husband for damages suffered by her through the negligence of a stranger, it was doubtless proper to hold that the contributory negligence of the husband barred the wife's right to recovery as...