City of Des Moines v. Frisk

• Decision Date: 29 June 1916
• Docket Number: 30813
• Citation: 158 N.W. 590,176 Iowa 702
• Parties: CITY OF DES MOINES, Appellee, v. EDWIN J. FRISK, Administrator, Appellant
• Court: Iowa Supreme Court

158 N.W. 590

176 Iowa 702

CITY OF DES MOINES, Appellee, v. EDWIN J. FRISK, Administrator, Appellant

No. 30813

Supreme Court of Iowa, Des Moines

June 29, 1916

Appeal from Polk District Court.--W. S. AYRES, Judge.

PETITION for a new trial was sustained. The defendant appeals.

Affirmed.

John L Gillespie, for appellant.

H. W Byers, Eskil C. Carlson and E. M. Steer, for appellee.

LADD J. EVANS, C. J., GAYNOR and SALINGER, JJ., concur.

OPINION

LADD, J.

At about 8 o'clock in the evening of May 20, 1912, Mrs. Berg, with her husband, alighted from a street car at the corner of 17th and Walnut Streets in Des Moines, proceeded south on 17th Street and Dean Avenue, down 18th Street toward Court Avenue. Eighteenth Street had been cut down, and burned cinders and clinkers dumped by the city along the line for a walk. When at about the middle of the block, Mrs. Berg fell, and a fracture of the femur was the consequence. She instituted a suit for damages against the city and recovered judgment in the sum of $ 1,125. A petition for new trial was filed February 7, 1914, and, on hearing, an order was entered sustaining the petition. The administrator of the estate of Mrs. Berg, who departed this life after the trial, challenges the sufficiency of the evidence to sustain this order. Evidence was adduced on the original trial tending to show that the cinder walk was rough, with large clinkers sticking through the cinders from one to three inches. Mrs. Berg testified that as she was walking along her right foot struck one of these clinkers and was twisted; that her husband was about half a block back of her, somewhat intoxicated, and that he immediately came where she was but did not assist her; that she was familiar with the walk, but did not have her glasses with her, and was not afraid of getting hurt; that Charles Tedrow, his mother, and sister came to her after she had fallen, and that she had not there stated how the accident happened. The husband corroborated her testimony, and denied, on cross-examination, having staggered against her and caused her to fall. On the part of the city, two witnesses swore that they saw Mrs. Berg trying to hold her husband on the sidewalk when they were passing along 17th Street, and Mrs. Runn testified that, after Mrs. Berg had reached her home she had said she ran ahead to open the door and fell over something; that she "did not know for sure what she stumbled or fell over, but it may have been a foot." Mrs. Berg denied having so stated, but admitted having said she was running and fell. Charles Tedrow testified to having seen Mrs. Berg sitting on the sidewalk, with her husband lying at her side, that he helped her up and went for assistance and took her home.

I. Considerable of the newly-discovered evidence was impeaching or cumulative. The affidavit of Albert Anderson merely related what Berg had said to him, and the condition of the walk. The latter had been gone into fully at the trial, and the testimony of the witness was cumulative. Testimony of what Berg, who was not a party to the suit, may have said out of court would be impeaching, as would testimony of what he may have said to Anna Jones. That a new trial will not be granted on newly discovered impeaching or cumulative evidence, is well settled. Morrow v. Chicago R. I. & P. R. Co., 61 Iowa 487, 16 N.W. 572. Nor do we think the testimony of Hazel Anderson alone would be sufficient. She claims to have seen Mrs. Berg and her husband walking together on 18th Street shortly before Mrs. Berg fell, but not to have seen her fall, and does not pretend to say that Berg was not at considerable distance back of her at that time. When she did look, they were together, and this was after the fall. What she claims to have seen was not inconsistent with evidence adduced at the trial, for Mrs. Berg ran on ahead after they had started down 18th Street, and her husband came up after she had fallen. It would not aid in...