Covert v. Town of Lovilia
| Decision Date | 21 October 1914 |
| Docket Number | 29804 |
| Citation | 149 N.W. 67,167 Iowa 163 |
| Parties | MRS. CHARLES COVERT, Appellee, v. TOWN OF LOVILIA, Appellant |
| Court | Iowa Supreme Court |
Appeal from Monroe District Court.--HON. C. W. VERMILION, Judge.
ACTION for damages for personal injury upon a defective sidewalk. From a verdict and judgment for plaintiff the defendant appeals.
Affirmed.
D. W Bates, for appellant.
Jno. R. Price, for appellee.
I.
Plaintiff's cause of action is based upon the claim that in passing over a board sidewalk in the town of Lovilia, February 26, 1911 she fell and received injuries which resulted in damages to her. She claimed negligence on the part of the town as follows: That it had permitted the sidewalk to get out of repair at the place where she was injured, and so remain in a condition which was dangerous and unsafe for many months prior to such time; that the stringers supporting the boards were rotten, and that at that point the walk was about six inches higher on one side than the other, making a slanting surface; that on the day of her injury the walk was covered with snow, ice, and sleet, and that it had been in such condition for some time prior, and that the officers of the defendant town had knowledge of such condition in time to have repaired it before her accident. She claimed that in passing over the walk at that point, because of its slanting condition, and being covered with snow, ice, and sleet, she slipped and fell and received the injury of which she complains, without any negligence on her part contributing to it. The answer was a general denial, a denial of knowledge or notice of the condition of the walk, and the averment that plaintiff was guilty of contributory negligence. The cause was submitted to a jury, a verdict was returned for plaintiff, and the defendant appeals.
II. The assignment of errors relate to the question of contributory negligence, the giving of instruction No. 14, and in overruling a motion to direct a verdict for the defendant. That motion was made at the close of plaintiff's evidence, at the conclusion of all the evidence, and was based upon the claim that the record shows plaintiff to have been guilty of contributory negligence.
III. While not stated in express terms, the question of defendant's negligence in the respects charged is suggested in argument. Without in detail setting out the evidence on that branch of the case, we conclude from an examination of the record that it required that question to be submitted to the jury, provided that the question of contributory negligence was not one for determination by the court.
IV. The appellee, Mrs. Covert, at the time of her accident was returning from church, shortly after noon. She had passed over the same walk in going an hour or so earlier, and its condition was unchanged. She testified that it was sleety and icy, with snow under the sleet. There was evidence tending to show that it had been in that condition, as to snow and ice, for some time, and that there had been a heavy fall of sleet the night before. In her testimony in chief she said she did not know the condition of the walk when she went onto it, and that she was walking as carefully as she could. On cross-examination she testified that she saw and knew of the condition of the walk when going to church, as to snow, ice, and sleet, and that she safely passed over it; that she thought it was bad when she first went over it, but that she "didn't think anything about the dangerous part of it" when going to church; that she did not think about it being dangerous until after she was coming back, and after she fell. Her testimony was further to the effect that she had passed over the walk at times before she was hurt, at the same place, and that it was not safe, the stringers being rotten and the walk sloping; that she was careful in passing over it, and looked where she stepped. Later in the case, after the evidence on the part of the plaintiff had been concluded, and following the presentation of a motion for a directed verdict for the defendant, the plaintiff was recalled and, over the objections of the defendant, further testified that she then believed by being careful she could pass over the walk. It is not unusual practice for trial courts to permit additional evidence to be introduced, after the conclusion of a case, but before its submission to the jury; whether such shall be done being peculiarly within the discretion of the court. Meadows v. Hawkeye Ins. Co., 67 Iowa 57, 24 N.W. 591. In permitting the plaintiff to further testify, there was no error.
The substance of the testimony as given above is the basis upon which appellant rests its claim that there is an affirmative showing of contributory negligence, and that it was the duty of the trial court to so hold. This court has held in many cases that the elements necessary to constitute contributory negligence in cases of this nature are that the person injured must have known that the walk was dangerous and unsafe, and also knew, or in the exercise of ordinary care for her own safety should have known, that it was dangerous and imprudent for her to attempt to pass over it. Barnes v. Marcus, 96 Iowa 675, 65 N.W. 984; Templin v. Boone, 127 Iowa 91, 102 N.W. 789; Reynolds v. Centerville, 151 Iowa 19, 129 N.W. 949; Gibson v. Denison, 153 Iowa 320, 133 N.W. 712.
Of the cases cited by appellant in support of its contention...
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