Evans v. City of Iowa City
| Decision Date | 18 October 1904 |
| Parties | LOUISA EVANS, Appellee, v. THE CITY OF IOWA CITY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Johnson District Court.--HON. M. J. WADE, Judge.
ACTION to recover damages for a personal injury, caused, as alleged by a defective sidewalk. There was trial to a jury, and verdict and judgment for plaintiff. Defendant appeals.
Affirmed.
W. H Bailey, Baker & Ball, and W. J. McDonald, for appellant.
Ranck & Bradley and Remley & Ney, for appellee.
On behalf of appellant it is insisted that a case of actionable negligence is not shown by the record. In the petition a defective condition of the sidewalk in question is alleged, and it is said that such arose primarily from improper original construction; also from a failure to keep in repair. It is also said that the state of disrepair alleged had existed for such a length of time that, in any event, constructive notice had been imparted to the city. The jury found not only that the defective condition existed as alleged, but that the city was chargeable with notice thereof. We have read the evidence as presented, and are satisfied that the jury was warranted in finding that the walk in its original construction was improper, in that it was composed of pine boards of the poorest grade, and less than an inch in thickness, laid upon stringers two by four inches in size, placed upon the ground; further, that by reason of such defective construction, aided by subsequent neglect, the walk had been allowed to get out of repair, and so remain for a considerable period of time before the occurrence of the accident. Either condition being found would support a charge of negligence. Where a defect in original construction is shown, the city is conclusively presumed to have notice thereof. Cramer v. Burlington, 39 Iowa 512; Cook v. Anamosa, 66 Iowa 427, 23 N.W. 907.
If a want of repair be relied upon simply, notice to the city is, of course, necessary. Cook v. Anamosa, supra. In respect of the latter, it is suggested that in the instant case the proof fails to show that the city had knowledge, either actual or constructive, of the defect in the particular board from which immediately the alleged injury resulted. This may be true, but the evidence tends to show that the walk over which plaintiff was passing, and at and about the place where the accident occurred, was out of repair generally, and had so been for some time. Notice of the defective condition of a sidewalk, generally, is notice of an included particular defect. Kircher v. Larchwood, 120 Iowa 578, 95 N.W. 184.
II. Appellant next challenges the sufficiency of the record to support the finding that plaintiff was not guilty of contributory negligence. It is conceded that the street on which the sidewalk was laid was one of the public streets of the city, and, generally speaking, plaintiff was where she had the right to be. She testifies that she had passed over the sidewalk in question very infrequently--not more than twice in the preceding two years; that she did not know, when she entered upon the walk on the occasion of her accident, of any defect in the condition thereof, such in character as to render the same unsafe to travel over; that it was after nightfall, and dark, and that in passing along the walk, in company with a little girl, she looked where she was going and walked carefully as best she could; that she had no knowledge or warning of the particular defect causing her accident until her foot went through the walk. As opposed to her statement, evidence is pointed out to the effect that the condition of the walk was generally observable, and that the same was situate not far from where plaintiff lived. It is also contended that plaintiff upon cross-examination made answers from which it is fairly inferable that in driving along the street in question she had observed that some of the boards in the walk were broken. Some such answers appear, but it is not clear to our minds to what sidewalk the answers relate or, conceding the reference be to the sidewalk in question, whether the same refers to the condition as discerned by her on the night of the accident, or to a condition previously discovered by her. The nonexistence of contributory negligence is a question of fact, and generally is for the jury. It is only when the facts...
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