Clark v. Town of Epworth

• Decision Date: 15 June 1883
• Citation: 16 N.W. 219,61 Iowa 750
• Parties: CLARK v. THE TOWN OF EPWORTH
• Court: Iowa Supreme Court

16 N.W. 219

61 Iowa 750

CLARK v. THE TOWN OF EPWORTH

Supreme Court of Iowa, Dubuque

June 15, 1883

Appeal from Dubuque Circuit Court.

THE plaintiff brings this action to recover damages for injuries sustained whilst driving along one of the defendant's streets, by reason, as he alleges, of a ditch negligently constructed across said street. There was a jury trial, resulting in a verdict and judgment for the plaintiff for $ 250. The defendant appeals.

AFFIRMED.

McCeney & O'Donnell, for appellant.

Utt Bros., for appellee.

OPINION

DAY, CH. J.

I. One of the assignments of error is the refusal of the court to grant a new trial upon the ground of newly discovered evidence. This assignment is not argued, and hence, as has been frequently held, it is waived.

II. No exception was taken to any ruling upon the trial, nor to any of the instructions given. No instruction was asked which was refused. The only question, therefore, which we can consider, is the sufficiency of the evidence to support the verdict. It is claimed that the evidence does not warrant the finding that there was any negligence in the construction of the ditch, nor that the plaintiff was in the exercise of ordinary care at the time the injury was sustained. Upon both of these points the evidence is conflicting. Upon neither is it so wanting as to warrant the conclusion that the verdict was the result of passion or prejudice. We cannot, therefore, disturb the verdict. The judgment is

AFFIRMED.