Edwards v. City of Cedar Rapids

Decision Date09 May 1908
Citation116 N.W. 323,138 Iowa 421
PartiesEDWARDS v. CITY OF CEDAR RAPIDS.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Linn County; B. H. Miller, Judge.

Action at law to recover damages for personal injuries received by plaintiff on a sidewalk upon a bridge in defendant city. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals. Reversed.James W. Good and H. E. Spangler, for appellant.

Crissman & Sargent and C. E. Wheeler, for appellee.

DEEMER, J.

The negligence charged in the petition is as follows: “That during the month of September, 1905, and for a long time previous thereto, said defendant city had negligently allowed to exist a dangerous place in said sidewalk; said dangerous place being about the middle of said bridge, and consisting of a loosened plank in the said walk, which said plank had become loosened at one end and raised above the level of the said sidewalk, and the said city negligently permitting the said loosened plank to remain in that condition and out of repair. That said dangerous and defective condition of said sidewalk had been of such long continuance prior to the date upon which plaintiff received her injuries that said defendant and its officers and agents charged with the construction and maintenance of said sidewalk knew, or should have known, prior to the date upon which plaintiff received her injuries, the defective, unsafe, and dangerous condition of the said sidewalk. That the sidewalk and bridge were insufficiently lighted.” Plaintiff introduced testimony to sustain these allegations, and, over defendant's objections, was permitted to show the condition of the stringers underneath the walk something over a year after she (plaintiff) received the injuries of which she complains. In this there was manifest error. Parkhill v. Town of Brighton, 61 Iowa, 103, 15 N. W. 853;Hoyt v. City, 76 Iowa, 430, 41 N. W. 63.

2. During the cross-examination of the physician who attended plaintiff after she had received her injuries, and in response to an objection made by plaintiff's attorney as to the character of the cross-examination, the trial court remarked: “I think the doctorhas given a very fair and unbiased statement of the condition he found this patient in.” This remark was manifestly erroneous and plainly prejudicial. State v. Stowell, 60 Iowa, 536, 15 N. W. 417;State v. Philpot, 97 Iowa, 367, 66 N. W. 730. A witness was produced to show that a large arc light was burning upon the bridge in question at the time plaintiff received her injuries. For some reason the court excluded this testimony, upon plaintiff's motion. In this there was error. The witness was the engineer at the electric light station, and he testified from a record kept by him which was made at the time, showing when the light went on and off. The memorandum was itself offered in evidence, and should have been received. State v. Brady, 100 Iowa, 191, 69 N. W. 290, 36 L. R. A. 693, 62 Am. St. Rep. 560. Had the witness' oral testimony been permitted to stand, this ruling would doubtless have been without prejudice; but, with that stricken out, the ruling was clearly prejudicial. Another witness, who made a memorandum as to the burning of the light on the night in question, and whose duty it was to make and keep such record, testified that the memorandum was correct. This memorandum was offered in evidence, but upon objection of plaintiff it was rejected; the court remarking: “I think the rule for examining a memorandum to refresh the memory is that if, with the aid of the memorandum, he has a distinct recollection, it is competent; but if he has not, but simply swears to the memorandum, then the evidence is incompetent.” For the reasons already stated, this was erroneous. Moreover, this memorandum was made by one of defendant's officers pursuant to his official duty, and as such the writing was admissible. 2 Elliott on Evidence, § 1272; Lorig v. City, 99 Iowa, 479, 68 N. W. 717. For the same reason a memorandum showing that the walk had been repaired but a week before the accident should have been received.

3. In the instruction given by the...

To continue reading

Request your trial
2 cases
  • Harris v. Schuerer
    • United States
    • Connecticut Supreme Court
    • July 25, 1927
    ... ... nor in the city on the date specified ... The ... first, second, and fourth ... v. Pennsylvania Railroad (C ... C.) 158 F. 1011, 1013; Edwards v. Cedar Rapids, ... 138 Iowa, 421, 116 N.W. 323; Wigmore on Evidence, § ... ...
  • Edwards v. City of Cedar Rapids
    • United States
    • Iowa Supreme Court
    • May 9, 1908

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT