Baxter v. City of Cedar Rapids

• Decision Date: 29 October 1897
• Citation: 72 N.W. 790,103 Iowa 599
• Parties: BAXTER v. CITY OF CEDAR RAPIDS.
• Court: Iowa Supreme Court

103 Iowa 599

72 N.W. 790

BAXTER

v.CITY OF CEDAR RAPIDS.

Supreme Court of Iowa.

Oct. 29, 1897.

Appeal from district court, Linn county; William G. Thompson, Judge.

Action at law to recover for personal injuries which are alleged to have been caused by negligence on the part of the defendant. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals from that judgment. After its appeal was perfected, it filed a petition for a new trial. A demurrer to that petition was filed and sustained, and, the defendant refusing to plead further, the petition was dismissed, and costs were taxed to the defendant. From that order the defendant also appeals. Affirmed.Warren Harman and J. J. Powell, for appellant.

Rickel & Crocker, for appellee.

ROBINSON, J.

In the evening of September 3, 1894, Mrs. C. A. Baxter, the plaintiff's intestate, while walking in a street of the defendant, fell, and, it is claimed, received severe and painful injuries, which caused her death about the 1st day of July, 1895. The plaintiff alleges that the fall and injuries of the decedent were caused by a defective street crossing, for which the defendant is liable. The defendant denies all negligence on its part, and alleges that the injuries sustained by the decedent, for which a recovery is sought, were caused by negligence on her part. The verdict of the jury was for the sum of $5,750. A motion for a new trial was filed by the defendant, and proceedings were had thereon as shown by the following record: “The court overruled defendant's motion for new trial, to which ruling the defendant duly excepted. The court then gave the plaintiff the opportunity of accepting three thousand dollars judgment and costs, instead of amount of verdict. Plaintiff accepts the three thousand dollars judgment and costs of suit. Defendant excepts. Thereupon the court entered judgment for three thousand dollars in favor of plaintiff. Defendant excepts.” This action was commenced by Mrs. Baxter to recover for the injuries she claimed to have sustained. In an amendment to her petition she alleged the assignment to her by her husband, George W. Baxter, of all claims which had accrued to him in consequence of the injuries she had sustained. After her death, Baxter, as administrator of her estate, was substituted as plaintiff, and the cause was prosecuted in his name until after judgment was rendered and an appeal therefrom taken. After the petition for a new trial was filed, the death of Baxter was suggested, and E. H. Crocker, as administrator, was substituted as plaintiff.

1. On the 29th day of August, 1894, the decedent and her husband moved from Spirit Lake to Cedar Rapids. At the time of the accident in question the plaintiff was walking rapidly to her home. At the corner of Fifth street and Sixth avenue she turned from the sidewalk to step onto a street crossing. Her right foot was caught by a plank of the crossing, which was raised above the surface of the sidewalk; and she was thrown with much force to the crossing, and severely injured. The sidewalk at that point was of stone, and the part of the crossing next to it was made of three planks, two inches thick, nailed together to crosspieces, and abutted against the walk. The upper surfaces of two of the planks were about level with the top of the sidewalk, but the end of the middle plank, which was the one which caused the decedent to fall, was somewhat above that level. There is much dispute as to the condition of that plank, and its height above the walk. Witnesses for the plaintiff contend that it was so decayed and worn that it would not hold nails; that it was warped in such a manner that the end next the walk was sprung, and, when not under pressure, its upper surface was 3 or 3 1/2 inches above the level of the walk. Other witnesses for the plaintiff state that the difference in level was less,--some placing it at 1 inch. Witnesses for the defendant state that the end of the plank was sound and securely nailed, and that it was only an inch or an inch and a half higher than the other planks. In view of this conflict in the testimony, it was the province of the jury to determine the condition of the plank, and its height above the walk. There was testimony which tended to show that the defect in the crossing of which the plaintiff complains had existed for ten days or two weeks, and that the crossing was in a thickly-inhabited part of the city, and much used. The plaintiff had, during a visit to Cedar Rapids, passed over the crossing seven or eight weeks before; but it is not shown that the alleged defect then existed, nor that she knew of it at the time of the accident. When that occurred it was almost dark, but the street lamps had not been lighted. Her testimony was taken and used on the trial. She stated that: “It was quite dark, and when I came to the corner I turned; and, as I came from the pavement onto the crosswalk, my foot caught on the middle plank, and threw me on my left knee. I was walking fast at the time, as I usually do. I am a very spry walker. The middle plank of the three on the crosswalk caught my foot. It was done so quick I could hardly tell. * * * I was walking as I usually walked,--lifting my feet well from the ground. I didn't notice anything that night in reference to the sidewalk.” We do not think the evidence shows that the decedent was negligent in not discovering the condition of the walk. Owen v. City of Ft. Dodge (Iowa) 67 N. W. 283. And it appears, from the length of time the defect in the crossing had existed, and its location, that the defendant is chargeable with knowledge of it in time to have put the crossing in good condition before the accident occurred.

2. Several different physicians treated the decedent after the accident, and one of them testified as a witness for the plaintiff. The defendant placed several of the others on the witness stand, and asked them questions in regard to the condition of the decedent, and the information they obtained while treating her. The court, on the objection of the plaintiff, refused to receive their testimony, on the ground that the information sought to be obtained from them was privileged. The ruling was based on section 3643 of the Code of 1873, which contains the following: “No * * * physician shall be allowed, in giving testimony, to disclose any confidential communication properly intrusted to him in his professional capacity, and necessary and proper to enable him to discharge the functions of his office according to the usual course of practice. * * * Such prohibition shall not apply to cases where the party in whose favor the same are made waives the rights conferred.” The information sought to be elicited from the physicians was within the prohibition of that section. Prader v. Association (Iowa) 63 N. W. 603. But the defendant contends that the plaintiff waived the prohibition by placing one of the physicians on the stand as a witness in her behalf. Nothing in the statute justifies such a claim, and we are of the opinion that the ruling of the court was right. We think the court was also right in refusing to permit one of the physicians of the decedent called by the defendant to answer a question which it asked, as follows: “Will you state any conversation, if any you had, with Mrs. Baxter, in which she asked you whether or not that injury in the hip could not arise from the fact that she had to do most of her standing on her right hip, and because she was compelled to use a crutch, and not use her left limb?” Whether the decedent ever asked the question indicated was wholly immaterial, and, if the facts were as assumed in the interrogatory, they were privileged, and within the prohibition of the statute.

3. The defendant asked the court to instruct the jury that, if “the crosswalk was only raised about two inches above the sidewalk to which it was an approach, then the crosswalk was reasonably safe and convenient for the public. A simple rise of two inches from a sidewalk to a crosswalk would not be such an obstruction that you could find that it was not in a reasonably safe condition, and in that case you will find for the defendant.” The court refused the instruction, and of that ruling the defendant complains. It seems that there is authority for the claim that the loose end of a plank in a walk which rises two inches above the other portions of the walk is not a defect for which the municipality in which it exists is liable. Weisse v. City of Detroit (Mich.) 63 N. W. 423. See, also, Yotter v. City of Detroit (Mich.) 64 N. W. 743. It may be that the conclusions reached in those cases were authorized by the facts upon which they were based, but we do not think it can be said, as a matter of law, that an obstruction in a sidewalk or street crossing two inches high cannot be such a defect that the city or town in which it exists may be liable for injuries which it causes. It is manifest that such an obstruction may easily cause most serious...