Day v. City of Mt. Pleasant
| Decision Date | 07 December 1886 |
| Citation | 70 Iowa 193,30 N.W. 853 |
| Parties | DAY v. CITY OF MT. PLEASANT. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Henry county.
Action to recover damages for personal injuries sustained by plaintiff from falling into a cellar-way constructed in the sidewalk of one of the principal business streets of defendant. The cause was tried to a jury, and a judgment upon a verdict for plaintiff was had. Defendant appeals.T. A. Bereman, for appellant.
Woolson & Babb, for appellee.
1. The petition for a cause of action alleges that defendant negligently permitted the owner of a business building used for a store to construct a way to a cellar under the building, which occupied a part of the sidewalk, and had “no railing or guard or protection” to prevent persons from falling therein, except wooden doors, which were sometimes open, and at other times closed, of which plaintiff had no knowledge; and that plaintiff, while walking upon the sidewalk, in the exercise of care, fell into the cellar-way, and received severe and permanent injuries from the fall. Defendant's answer denies the allegations of the petition, and alleges that the cellar-way is necessary for the reasonable use of the building under which the cellar was constructed, and that the doors are such as are commonly used for cellar-ways found in the sidewalks elsewhere in the city, and in other cities. It is also alleged that plaintiff contributed to his own injury by want of care.
2. The circuit court, in an instruction to the jury, in effect holds that defendant would be guilty of negligence if the door was at the time “unfenced, and without any guard.” The same thought, to some extent, is repeated in one or two other instructions. We understand that the court held that defendant, as a matter of law, should be held guilty of negligence, if the jury found that there were no barricades, fences, or other protection around the door when opened; thus determining, as a matter of law, that the omissions contemplated in the instruction constituted negligence. We think the instructions are erroneous. The question of negligence is often purely a matterof law, as where an act, under all conditions, would inevitably result in danger or injury to the party who is exposed to the consequence of the act, or suffers therefrom. But if the act may or may not result in injury, depending upon circumstances or conditions, whether it be negligent is a question for the jury to determine. In this case it cannot be said that the absence of barricades or fences about the door would, under all circumstances, be dangerous. The distance the door projects into the sidewalk, the course of travel of pedestrians using the sidewalk, whether near or away from the door, the width of the sidewalk, and other things, would determine whether it was negligence to omit the protections contemplated in the instruction. These were matters for the consideration of the jury, who were authorized to determine, upon all the facts, whether defendant was negligent because of the absence of barricades, or other protections, around the door.
We know of no rule of law which forbids the construction of ways in the sidewalk to cellars under adjacent buildings. If they may be constructed, they may be used, and, of necessity, the doors may be opened, both in the day-time and night-time. If, when open, they are sufficiently conspicuous to be seen by a pedestrian using the sidewalk, in the exercise of proper diligence, or are sufficiently lighted in the night-time to disclose the danger to such person, it cannot be held that the mere...
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