Barnes v. Town of Marcus

• Decision Date: 24 January 1896
• Citation: 65 N.W. 984,96 Iowa 675
• Parties: FRED V. BARNES v. THE TOWN OF MARCUS, Appellant
• Court: Iowa Supreme Court

65 N.W. 984

96 Iowa 675

FRED V. BARNES v. THE TOWN OF MARCUS, Appellant

Supreme Court of Iowa, Des Moines

January 24, 1896

Appeal from Cherokee District Court.--HON. FRANK R. GAYNOR, Judge.

Action at law to recover damages for injuries sustained by plaintiff, growing out of a fall upon a sidewalk in the defendant town, which the defendant negligently and carelessly allowed to become rotten and out of repair. Verdict and judgment for plaintiff and defendant appeals.

Affirmed.

Lewis Holmes & Beardsley and A. R. Molyneux for appellant.

E. C Herrick and Benjamin Radcliffe for appellee.

OPINION

Deemer, J.

The petition, in substance alleges that plaintiff received a permanent and serious injury while walking along one of the streets of the defendant town, by reason of a dangerous and defective sidewalk, which defendant negligently and carelessly allowed and permitted to remain out of repair and in an unsafe condition for foot travelers; that plaintiff, while passing over said walk, in company with another person, was tripped by a loose plank, one end of which was stepped upon by his companion, while the other flew up in front of plaintiff, thus causing him to fall and receive the injuries of which he complains; that plaintiff did not, by any want of care on his part contribute to the injury; and that the accident was wholly due to the carelessness and negligence of defendant in permitting said walk to be and remain in an unsafe and dangerous condition. The defendant, among other things, pleaded, in its answer, that the accident was due to the plaintiff's own negligence in passing over the walk, the condition of which he well knew, and to the negligence of his companion, with whom he was walking, who carelessly stepped upon the plank, which raised up and caused the plaintiff's fall. The plaintiff moved to strike from the answer all allegations with reference to the negligence of the person with whom he was walking. This motion was sustained, and error is assigned on this ruling. It is well settled that the negligence of a third person is no defense, if the negligence of the defendant in fact contributed to or had a share in producing the injury, unless there is some ground for imputing the negligence of this third person to the plaintiff. If the negligence of the defendant contributed to, it must necessarily have been an immediate cause of, the accident; and it is no defense that another was likewise guilty of wrong. This rule is so elementary as scarcely to need the citation of authorities to sustain it. But see Railway Co. v. Cummings, 106 U.S. 700 (1 S.Ct. 493, 27 L.Ed. 266); Clark v. Soule, 137 Mass. 380, Cooley, Torts (2d Ed.) p. 824; Chacey v. City of Fargo (N. D.) 64 N.W. 932. Of course, if there be any reason for identifying the third person with the plaintiff, so that the negligence of the one might be imputed to the other, then there could be no recovery, because of contributory negligence. We are, then, brought to the inquiry of what there is in this case which furnishes the grounds for holding that the negligence of the person walking with plaintiff should be imputed to him. We find in the record absolutely nothing except the statement that the parties were walking down street together. The only common purpose they were engaged in was in passing along the street in the same direction and at the same time. Surely, this is not enough to identify the one with the other in such manner as to hold either responsible for the negligence of the other. The point is squarely decided adversely to appellant in the case of Nisbet v. Garner, 75 Iowa 314 (39 N.W. 516). See, also, Larkin v. Railroad Co., 85 Iowa 492 (52 N.W. 480). The case of Payne v. Railroad Co., 39 Iowa 523, is in no proper sense in conflict with the rule we have announced. So far as disclosed by the pleading, these persons were not engaged in a common purpose. They were, it is true, doing the same thing,--that is, passing over the walk at the same time; but this is no reason for imputing the negligence of one to the other. The court was clearly right in sustaining the motion.

II. Several errors are complained of in the admission and rejection of testimony. We will not set them out, for it would but incumber the opinion with a useless restatement of elementary rules of evidence. Most, if not all, the questions to which objections were sustained were asked upon cross-examination, and were, as a general thing, outside of the well-known rules. Some of them called for conclusions of the witnesses, as distinguished from ultimate facts. And all matters inquired about, which were proper, were brought out and fully proven during the progress of the trial. We discover no prejudicial error.

III. The defendant asked the court to submit certain special interrogatories to the jury. The record shows, however, that these interrogatories were handed to the judge who tried the case out of court, and he rejected them on his own motion. They were never submitted to counsel on the other side, as the Code (section 2808) requires, and for that reason, if for no other, the court was justified in refusing to submit them. Crosby v. Hungerford, 59 Iowa 712 (12 N.W. 582). But, aside from this, the interrogatories did not call for ultimate questions of fact which were in any way decisive of the case, and for this reason, as well as for the other, were properly refused.

IV. Some of the instructions are complained of because they do not recognize the negligence of plaintiff's companion as a good defense. We have said all we care to on this proposition, except to observe that there was nothing in the evidence to indicate that these persons should be so identified as to make the third person's negligence contributory.

V. The eleventh instruction was as follows: "Paragraph 11. Upon this branch of the case, you are further instructed, that, if you find, from the evidence, that the defendant was negligent in permitting the sidewalk to remain in the condition in which you find it was at the time the plaintiff fell, and that said walk was at said time in a dangerous and unsafe condition for travel, and you further find, from the evidence, that the plaintiff, at the time he attempted to pass over the walk, well knew this fact, and that it was imprudent for him to attempt to pass over it at the time he did attempt to pass over it for any reason, and with this knowledge he still persisted in passing over it, although there was another walk which he might have taken in going in the direction which he desired to go, then his own negligence contributed to his injury, and he cannot recover. That is, if you find, from the evidence, that the plaintiff knew, at the time he attempted to pass over the walk, of the negligence of the defendant, and that the walk was in a dangerous and unsafe condition, and that it was imprudent for him to attempt to pass over it in company with Ballard, as the evidence shows he did attempt to pass over it, and yet, notwithstanding this fact, and the knowledge he had concerning the danger, he did attempt to pass over it and was injured in so doing, and you find that there was another walk which he might have taken in going in the direction he desired to go, which was perfectly safe for travel, then he was negligent in so attempting to pass over such walk and cannot recover." This is objected to because of the use of the words "well knew." It is also objected to because it requires both knowledge of its condition, and of the impropriety in attempting to pass over, before plaintiff could be said to be guilty of contributory negligence in going upon it in preference to taking another walk. Further, it is said, the instruction is faulty because, under it, to defeat plaintiff's right of recovery, it must appear that the walk was dangerous, that plaintiff knew it was imprudent to pass over it, and that there was another walk he might have taken to reach his destination; and it is contended that it was not necessary to show all...