Bailey v. City of Centerville

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

88 N.W. 379

115 Iowa 271

LIZZIE BAILEY
v.
CITY OF CENTERVILLE, Appellant

Supreme Court of Iowa, Des Moines

December 21, 1901

Appeal from Appanoose District Court.--HON. 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.

Mabry & Payne for appellant.

C. F. Howell for appellee.

OPINION

[115 Iowa 272] 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, 65 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 [115 Iowa 273] 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, 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 Thompson, Negligence (2d Ed.) section 502. In Shearman & Redfield Negligence (5th Ed.) section 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 rights to recovery as effectually as did the husband's." But in the states where there has been a radical change in the relations of husband and wife, and where the wife may sue alone for her injuries, it is held, as a general rule, that the fault of the husband is not chargeable to the wife. Id. And Judge Thompson says in section 504 of his work, supra: "There is no ground, in reason or justice, growing out of the marital relation, for making a different rule * * * for the case where the wife has committed her safety to her husband; and the weight of authority is...