Cook v. City of Anamosa

• Decision Date: 08 June 1885
• Parties: COOK v. THE CITY OF ANAMOSA
• Court: Iowa Supreme Court

23 N.W. 907

66 Iowa 427

COOK v. THE CITY OF ANAMOSA

Supreme Court of Iowa, Des Moines

June 8, 1885

Appeal from Jones Circuit Court.

ACTION for damages on account of a personal injury sustained by plaintiff while traveling on one of the streets of the defendant city, and which was occasioned, as is alleged, by a defect in said street. There was a verdict and judgment for defendant, and plaintiff appeals.

AFFIRMED.

Sheean & McCarn, for appellant.

R. M Bush, for appellee.

OPINION

REED J.

Plaintiff, while walking on a sidewalk on one of defendant's streets, was struck and severely injured by a loose plank, which was thrown up by the weight of a person who was walking with plaintiff, and who stepped on the part of the plank which was outside of the sill on which it rested. The evidence tended to show that the plank had been loose for as much as two weeks before the accident happened, and the fact that it was loose had been noticed by a number of residents of the city. Ordinarily it lay in its proper position in the walk, but on one occasion it was taken out of the walk and thrown into the street, where it remained for a few hours, when it was put back into its place in the walk. A person walking alone on the middle of the walk would not be likely to notice that the plank was loose; but if he stepped on the portion of it outside of the sill, the other end would be thrown up by his weight; and the attention of those persons who had noticed that it was loose was called to the fact by seeing it thrown up in that manner. A number of witnesses testified that they had passed over the walk frequently during the time the plank is said to have been loose, and that their attention was not called to its condition. There was also evidence tending to show that the city marshal was informed, a few days before the accident, of the defect in the walk, but no steps were taken by the city to repair the walk until after the injury occurred. It is not claimed that the walk, as originally constructed, was in any manner defective. Nor is there any evidence that any officer of the city, except the marshal, had actual knowledge before the injury that the plank was loose.

When the parties had introduced all of their evidence, the court instructed the jury that plaintiff was not entitled to recover, and a verdict was accordingly returned for defendant. It is the settled rule in this state that when a sidewalk, originally constructed in a proper manner afterwards becomes out of repair, and an injury is thereby occasioned, the municipal corporation whose duty it was to keep it in repair, is liable therefor, if it had actual notice of the defect in such time as that, by the exercise of reasonable diligence, it might have repaired it, and thereby have prevented the injury, or if the defect was of such a nature and had existed for such a period of time as that, by the exercise of ordinary care and diligence in the discharge of its duties, it would have learned of its existence in time to prevent the injury. Rice v. Des Moines, 40 Iowa 638; Montgomery v. Des Moines, 55 Iowa 101. The holding of...