Duffy v. City of Dubuque

• Decision Date: 09 April 1884
• Citation: 18 N.W. 900,63 Iowa 171
• Parties: DUFFY v. THE CITY OF DUBUQUE
• Court: Iowa Supreme Court

18 N.W. 900

63 Iowa 171

DUFFY v. THE CITY OF DUBUQUE

Supreme Court of Iowa, Davenport

April 9, 1884

Appeal from Delaware Circuit Court.

THIS action is brought by plaintiff to recover damages on account of personal injuries sustained by him, in consequence of an obstruction and nuisance which, he alleges, the defendant negligently permitted to remain in one of its streets.

There was a verdict for plaintiff for $ 5,000. Defendant filed a motion for a new trial, one of the grounds of which was that the damages were excessive. The circuit court was of opinion that this ground of the motion was well taken, but gave the plaintiff leave to remit $ 1,500 of the amount of the verdict, and thereupon the motion was overruled, and judgment entered on the verdict for $ 3,500. Defendant appeals.

AFFIRMED.

D. J Lenehan, for appellant.

Pollock & McNulty, for appellee.

OPINION

REED, J.

The evidence given on the trial establishes the following facts Tenth street is one of the principal streets in the city of Dubuque. It runs east and west, and is intersected by Locust, a street running north and south. It has been macadamized, guttered and curbed for many years, and there is a brick sidewalk on its north side. There was a frame building situated on the lot in the northwest angle of the two streets. The main part of this building stood immediately at the corner, but there was a wing in the rear of the main building, extending west along Tenth street, the foundation of the south wall resting immediately inside of the north line of the street. Some two or three weeks before the accident, the owner of this property, in making some improvements about the premises, had torn this wing down. The workmen who did the work took the roof of the wing off in sections, and two of these sections were carried onto the sidewalk and stood on their edge, being supported on the side towards the street by a tree, against which they rested. There was piled against them, on the side towards the lot, a portion of the timbers and lumber taken from the part of the building which had been torn down. Afterwards, this pile of debris and one of the sections of the roof were removed. The section which remained was about eighteen feet long by fourteen feet wide, and, when the other section and the pile of debris were removed, it had no support whatever on the side towards the lot. There was a hydrant standing on the lot, about eight feet in the rear of the main portion of the building, and from one to two feet from the line of the sidewalk. Plaintiff is a plasterer, and he and his partner had been employed to do a job of plastering on the building. On the day of the accident, he went to the building in company with a teamster, with a load of material, scaffolding and tools, to be used in doing the work. After they had unloaded the stuff from the wagon, plaintiff went into the house and got a vessel, and he and the teamster went to the hydrant for the purpose of getting some water to drink, going along the sidewalk from a door on the south side of the building. Plaintiff drew some water from the hydrant in the vessel, and handed it to the teamster, who took a drink, handed the vessel back to plaintiff and immediately left. Plaintiff turned to the hydrant for the purpose of drawing water for himself, and, while in the act of doing this, and when stooping over, with one foot on the ground near the hydrant, and the other on the sidewalk, the section of roof was blown over by a gust of wind, falling on plaintiff, and inflicting the injuries of which he complains.

Many of these facts were not disputed on the trial, and the verdict of the jury is conclusive as to such as were controverted.

The defendant asked the court to give the following instruction:

"If the jury find from the evidence that, at the time of the accident, the plaintiff was at the hydrant which stood inside the lot, with one foot on the lot and the other on the sidewalk, then he would not be a traveler on the street, in contemplation of law, and cannot recover against the city in this action."

The court refused to give this instruction, and on its own motion gave the following:

"The plaintiff must further establish by a preponderance of credible testimony, in order to entitle him to a verdict against the said city, that, when he sustained the injuries complained of, he was still in part upon the sidewalk of said city, as he cannot recover, if the accident causing said injuries occurred after he had wholly left said sidewalk and entered the lot where the hydrant was situated."

Appellant assigns the giving of this instruction, and the refusal to give the one asked, as error. The position of counsel...