Brooks v. Van Buren Cnty.
| Decision Date | 08 May 1912 |
| Citation | 135 N.W. 1110,155 Iowa 282 |
| Parties | BROOKS v. VAN BUREN COUNTY. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Van Buren County; F. W. Eicherlberger, Judge.
Action to recover damages for personal injury. Judgment for plaintiff, and defendant appeals. The material facts are stated in the opinion. Affirmed.W. B. Newbold and J. C. Calhoun, both of Keosanqua, for appellant.
Walker & McBeth, of Keosanqua, for appellee.
The plaintiff was engaged in moving a traction engine and threshing machine over a county bridge on a public highway, when the bridge collapsed, precipitating plaintiff and his machine into the ravine below. In this fall, he received injuries of considerable severity, for which he demands recovery of damages, on the theory that the bridge was insufficient in its original construction, and that defendant had been negligent in permitting the timbers used therein to become old and decayed to an extent rendering it unsafe for public use. It is further alleged that the injury occurred on August 10, 1909; that on November 8th of the same year plaintiff presented his said claim for damages to the board of supervisors of the county for allowance, which was refused, and this action was thereupon immediately instituted. The defendant, answering the petition, admits that the bridge was constructed and maintained by the county, and that plaintiff presented his claim for damages to the board of supervisors. It denies that the county had been in any manner negligent with respect to said bridge, denies that the timbers were insufficient, rotten, or unsafe, and avers that, if defective in any way, notice thereof had never been brought home to the county, or to its proper officers, and that plaintiff was himself chargeable with negligence contributing to his said injury. It is further answered that the claim of the plaintiff was not presented to the board of supervisors within the time required by law, and that right of action thereon is therefore barred. The issues were tried to a jury, which returned a verdict in favor of plaintiff for $750, upon which finding, after overruling defendant's motion for a new trial, judgment was duly entered.
[1][2] 1. There was evidence tending to show that the bridge was originally constructed
some 20 or more years prior to the accident, but had been, to a certain extent, reconstructed in the year 1903; and it was the contention of the plaintiff that in this reconstruction much of the old materials had been employed, thereby impairing the strength and durability of the structure. With evident reference to this feature of the case, the defendant requested the court to submit to the jury three special interrogatories, as follows:
“(1) When the bridge was rebuilt in 1903, do you find that the timbers used were of sufficient size and strength for the ordinary and probable use of said bridge?
(2) Do you find the defect in the bridge which caused the collapse to be a latent defect?
(3) Do you find that the county had notice of this defect prior to the accident?”
Of these the court approved the first interrogatory, and refused the second and third, marking them accordingly. It is now assigned as error that these questions were all written on the same sheet of paper, and the court, instead of rewriting the one given, attached the original sheet, with the court's notations thereon to the instructions, in which form they were sent to the jury. This statement of fact is found only in the motion for a new trial and in counsel's brief and the assignments of error, and could well be overruled as being without proper support in the record. We may say, however, that, if appellant wished to avoid such an occurrence, it could have availed itself of the easy expedient of submitting its interrogatories on separate sheets. The court should not be expected to do the clerical work which belongs to counsel. At the very least, if either party had any exception to the manner in which the submission was made, it should have been taken at the time, and opportunity given to correct any oversight of this character.
[3][4] Nor do we find any error, of which appellant may justly complain, in refusing the second interrogatory; for, had it been submitted and answered, either in the affirmative or negative, it could not have affected the result of this appeal. The court clearly instructed the jury upon the law of the case as applied to either theory; and, even assuming, as appellant claims, that the defect was latent, the record would still support the verdict. Again, the jury answered the first interrogatory in the negative, and this was in effect a finding that the defect was patent, rendering an answer to the second unnecessary. The third inquiry was rightfully refused as calling for a fact which inheres in the general verdict, finding the county chargeable with negligence.
[5] 2. Counsel argue that the evidence shows, beyond controversy, that the bridge was properly constructed, and that, according to the ordinary life of the timbers used, defendant was justified in relying upon its continued usefulness for a period of at least 10 years from the date of the rebuilding in 1903. It is true that evidence to this effect was offered; but the record justifies the suggestion that the testimony proves too much. The experts testifying for the defense say that the plan of the bridge was not defective, and that a bridge properly made of such timbers and of such pattern will carry a load of 12 tons or more; but it appears to have fallen under a load not to exceed half the amount. This would seem to be a pretty fair demonstration that the structure was in fact defectively constructed, or that it had become...
To continue reading
Request your trial