Bussell v. City of Ft. Dodge
| Decision Date | 11 January 1905 |
| Citation | 101 N.W. 1126,126 Iowa 308 |
| Parties | BUSSELL v. CITY OF FT. DODGE ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Webster County; G. W. Dyer, Judge.
Action at law to recover damages for a personal injury. The action, as commenced by plaintiff, was against the defendant city alone, and in the petition it was charged that the accident, through which plaintiff received the injuries of which he complained, was occasioned by his falling in the nighttime into an excavation or pitfall dug and negligently allowed to remain unprotected in a public street of said city. The city answered by a general denial. With its answer it filed in the case a notice to Frank Corey, which had theretofore served upon him, and which in terms, gave notice of the pendency of plaintiff's action, and that, as the owner of the abutting lot, and having made the excavation in question for his own purposes, the city would look to him to pay any judgment that might be obtained against it. Thereafter the city procured from the court permission to make said Frank Corey a party defendant, and filed, as against him, a cross-petition, which will be noticed in the opinion, as far as necessary. Said Corey, on being brought in, filed various motions and a demurrer addressed to the cross-petition, all of which being in turn overruled, he filed an answer. Thereafter trial was had to a jury. Corey, although represented by counsel, was not permitted by the court, acting on its own motion, to have any part in the trial. At the close of the evidence he (Corey) moved for a verdict in his favor, which was overruled. Thereupon, and on its own motion, the court continued the case as to him, and to this both plaintiff and the defendant city objected and took exception. The case was then submitted to the jury as against the defendant city, and there was a verdict and judgment in favor of plaintiff. The defendant city appeals from the judgment, and also from the order continuing the case as against the defendant Corey. The defendant Corey appeals from the ruling of the court refusing to instruct a verdict, and also from the order for continuance Affirmed.M. J. Mitchell, for appellant city of Ft. Dodge.
Kenyon & O'Connor, for appellant Corey.
C. W. Hackler and Healy Bros. & Kelleher, for appellee.
First as to the questions involved in the appeal by the defendant city:
1. Counsel for appellant do not deny in argument but that a case of actionable negligence on the part of the city was fully made out. The contention is that the record fails to show that, at the time of his accident, plaintiff was in the exercise of ordinary care, and was therefore free from contributory negligence. The excavation into which plaintiff fell was in the line of the sidewalk, and had been made by defendant Corey in connection with the erection of a building by him as the owner of the abutting lot. Plaintiff testified that he did not know of the existence of such excavation. He further testified that the night was dark, and that as he passed along the walk the first intimation he had of the presence of the danger was when he fell into the excavation. The evidence as to a barricade about the excavation, and as to the sufficiency thereof, and with reference to the display of signal lights, was in conflict. On the whole, we have no doubt but that the question of care on the part of the plaintiff was one for the jury. Its finding was warranted, and we cannot disturb it.
2. The defendant requested an instruction to the effect that if plaintiff knew of the excavation, or by the exercise of ordinary care should have known thereof, and that it was imprudent to attempt to pass over the same, and if there was another and safe way which he could have taken, then he was guilty of contributory negligence, and could not recover. The request was refused, and properly so. The reason therefor becomes apparent when it is remembered that plaintiff testified that he did not know of the excavation until he fell into it, and in this he was not contradicted. Knowledge of the danger is essential to the rule as announced by the cases which counsel cite and rely upon. In this case the contributory negligence of plaintiff, if such there was, consisted in his going into the excavation, when, had he been exercising due care, he would have discovered such excavation in time to have avoided it. This was the view taken by the trial court, and we think the jury was properly instructed with reference thereto.
3. Complaint is made of the ninth instruction given, for that the same was misleading and did not...
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