Bailey v. City of Centerville

• Decision Date: 07 April 1899
• Citation: 108 Iowa 20,78 N.W. 831
• Parties: BAILEY v. CITY OF CENTERVILLE.
• Court: Iowa Supreme Court

108 Iowa 20

78 N.W. 831

BAILEY

v.CITY OF CENTERVILLE.

Supreme Court of Iowa.

April 7, 1899.

Appeal from district court, Appanoose county; F. W. Eichelberger, Judge.

Action at law to recover damages for personal injuries sustained by plaintiff, due to a fall upon one of the sidewalks in the defendant city, which it is claimed was out of repair, and in an unsafe and dangerous condition. The case was tried to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals. Reversed.Mabry & Payne, for appellant.

C. F. Howell, for appellee.

DEEMER, J.

While walking along one of the streets of defendant city, accompanied by her husband, plaintiff struck one of her limbs against a loose board in one of the sidewalks, which was raised from its place by reason of her husband's stepping upon the inner end thereof. The injury received resulted in necrosis of the left tibia, necessitating a surgical operation, that was performed by surgeons of plaintiff's choice, but which, plaintiff claims, left her seriously and permanently disabled. The alleged negligence is failure of the city to keep its sidewalks in good condition for public travel.

A witness was asked as to any changes in the condition of the walk after plaintiff received her injuries, and he answered that there was no change for a month or so after the accident occurred. This evidence was properly admitted, for another witness was permitted to testify as to the condition he found it in just after the accident. Munger v. City of Waterloo, 83 Iowa, 559, 49 N. W. 1028.

Another witness was allowed to testify, over defendant's objection, that from the time he first noticed the walk until plaintiff was injured, a period of six months, “it did not get in any better shape.” This was merely an affirmation that there was no change in its condition, and was not a mere conclusion, but a fact which might properly be given in evidence.

Evidence as to the condition of the walk some 200 feet from the place of the accident was also admitted over defendant's objections. In view of the other evidence, tending to show that the walk in front of the entire block adjoining the sidewalk was out of repair, and in a dangerous condition, there was no error. Munger v. City of Waterloo, supra; McConnell v. City of Osage, 80 Iowa, 293, 45 N. W. 550.

A witness was permitted to state that the plaintiff “looked bad,” that apparently she could scarcely walk, and that she lifted her foot very tenderly. Such evidence was properly admitted. Rog. Exp. Ev. (2d Ed.) § 4, and cases cited; Yahn v. City of Ottumwa, 60 Iowa, 429, 15 N. W. 257;State v. Shelton, 64 Iowa, 333, 20 N. W. 459; and State v. Huxford, 47 Iowa, 16.

A physician called by the defendant was asked, on redirect examination, if a slight surgical operation, involving but slight inconvenience to the patient, would break up the adhesion found in plaintiff's leg, and restore it to its normal use, so that there would be no retarding of motion, or special inconvenience from the scar. An objection to the question was sustained, and error is assigned on the ruling. This witness had already stated that the adhesion was not to the bone, but to what is called the “fasciæ,” and said that it did not interfere with the range, but did with the freedom, of motion; that the wound might be painful, with changes of the weather, and would be so under any condition of weather if the nerves were caught up in the scar. The question to which we have referred was then propounded to him. We think it should have been answered. Answer to the interrogatory would, no doubt, have thrown much light on the question as to the extent of plaintiff's injury. Again, if, by slight expense and by slight inconvenience, plaintiff might have avoided the consequences of the defendant's negligence, it was her duty to go to this expense and suffer this inconvenience. Of course, she would not be required to undergo a serious or speculative surgical operation. But if a slight operation, involving but slight inconvenience, would relieve the plaintiff, it was her duty to alleviate her injury. And, if she failed and neglected to do so, she cannot recover from consequences which might thus be avoided.

Other assignments of error relating to rulings on evidence are without merit, or the errors, if any, were subsequently cured.

2. A portion of instruction No. 6 reads as follows: “(6) The court has permitted evidence to go to you tending to show that the walk within a short distance from the place where it is claimed the accident happened was out of repair; that is, that boards were loose at other places in the same block. You are especially instructed that this testimony should be considered by you, as against the city, only for the purpose of tending to show, if it does (and that is for you to say), whether or not the city authorities should have had knowledge or notice of the condition of the walk or plank where the accident is claimed to have happened, by the exercise of reasonable care.” This is complained of--First, because it directs that separate and distinct defects in the walk might be considered by the jury in determining the question of notice; and, second, because it assumes a state of facts as true, and usurps the province of the jury. Taken in connection with the evidence adduced, we do not think it is vulnerable to the first objection. This evidence tended to show that the walk was continuously in bad condition in front of the whole block. The latter objection is not tenable. The court did permit evidence to go to the jury tending to show that the walk was out of repair a short distance from the place of accident, and the instruction leaves it to the jury to say whether or not such evidence tended to show that the city had notice or knowledge of the defect which caused the injury. In other words, the effect of such evidence was left to the jury. In this respect the case differs from State v. Porter, 74 Iowa, 623, 38 N. W. 514, relied upon by appellant. That such an instruction was proper, see authorities heretofore cited in the first division of this opinion, and Armstrong v. Town of Ackley, 71 Iowa, 76, 32 N. W. 180.

3. The jury were told not to take into consideration the amount of sidewalk which the city had to maintain, nor its financial condition. It is said there was no evidence relatingto these matters, and that the direction was erroneous. True, there was no evidence regarding these matters. But the instruction was clearly without prejudice. If they did not consider such matters, it is the same as if no evidence had been adduced upon the subject; and, as defendant asked nothing on account thereof, no harm...