Farrell v. City of Dubuque

• Decision Date: 18 January 1906
• Parties: FLORENCE FARRELL v. CITY OF DUBUQUE, Appellant
• Court: Iowa Supreme Court

105 N.W. 696

129 Iowa 447

FLORENCE FARRELL v. CITY OF DUBUQUE, Appellant

Supreme Court of Iowa, Des Moines

January 18, 1906

Appeal from Dubuque District Court.-- HON. M. C. MATTHEWS, Judge.

ACTION to recover damages for injuries received through the alleged negligence of defendant in allowing an unsafe structure to be constructed and remain in the street of defendant city. Verdict for plaintiff for $ 3,500. From judgment on this verdict, defendant appeals. Affirmed.

Affirmed.

J. W Kintzinger and J. C. Longueville, for appellant.

McCarthy Kenline & Roedell, for appellee.

OPINION

MCCLAIN, C. J.--

I. Plaintiff was examined as a witness on her own behalf, and on cross-examination defendant was allowed over objection to bring out the fact that she had lived in various houses subsequently to her marriage and prior to the injury. This evidence was admitted, as appears from a remark of the court for the purpose of affecting her credibility. On redirect examination she was asked, as to each house which she had thus occupied, whether she had paid her rent, and over defendant's objection was allowed to answer that she had. The defendant, having gone into this general question for the purpose of impeaching plaintiff's testimony, cannot complain that plaintiff was, on redirect-examination, allowed to testify with reference to the same matter.

II. The injury of which plaintiff complains resulted from her being struck by a piece of timber which constituted the cross-piece of a frame constructed in the street of defendant city for the purpose of decoration during a street fair. It was fastened at one end to an upright piece resting in the gutter, and was insecurely attached to the adjoining building. The framework of which it formed a part was covered with bunting, and being shaken loose by the wind this cross-piece fell upon plaintiff, who was passing along the sidewalk beneath it. Similar frames were erected at different places along the same block, and plaintiff was allowed over defendant's objection to prove the construction of the other frames, and their condition at and before the time of the accident. It is contended that these frames were wholly independent of each other, and that evidence as to the condition of the others were immaterial. It is true that in an action to recover damages for injuries resulting from a particular defect in a sidewalk or railroad track, we have held that evidence as to a defect wholly unconnected with that complained of is not admissible. Ruggles v. Town of Nevada, 63 Iowa 185; Conklin v. Marshalltown, 66 Iowa 122, 23 N.W. 294; Goodson v. Des Moines, 66 Iowa 255, 23 N.W. 655; Kuhns v. Wisconsin, I. & N. R. Co., 70 Iowa 561, 31 N.W. 868. But it appears that these frames were all constructed on the same general plan, and the evidence tended to show that they were all insecure and dangerous, and evidence of their condition as it was known or might have been known to the city was admissible for the purpose of showing notice to the city of the dangerous condition of the frame in question. It would be difficult perhaps to prove that the particular defect of the frame which caused the injury was known to the city, but if it had notice that the structures were all defective and dangerous, and produced an unsafe condition of the sidewalk along the entire block, then the city would be charged with notice that the particular frame in question constructed like the others was dangerous to persons passing underneath. Faulk v. Iowa County, 103 Iowa 442, 72 N.W. 757; Whittlesey v. Burlington, C. R. & N. R. Co., 121 Iowa 597, 90 N.W. 516; Evans v. Iowa City, 125 Iowa 202, 100 N.W. 1112; Lorig v. Davenport, 99 Iowa 479, 68 N.W. 717; Smith v. Des Moines, 84 Iowa 685, 51 N.W. 77. As the court limited the jury to the consideration of this evidence for the purpose of showing notice, there was no error in its admission.

III. Evidence was admitted over defendant's objections as to statements made by one Crawford, sidewalk inspector of the city, as to the dangerous condition of the sidewalk by reason of the improper erection and construction of these frames. Counsel for appellant contend that what Crawford said was not binding on the city, because it was not shown that he was acting in his official capacity or in the discharge of his duty at the time of the accident. But for the purpose of showing notice to the city it was entirely competent to show that the defective condition of these frames came to the notice of an officer of the city charged with the duty of seeing that the streets and sidewalks were kept in safe condition. Lorig v. Davenport, 99 Iowa 479, 68 N.W 717; Owen v. Ft. Dodge, 98 Iowa 281, 67 N.W. 281; Trapnell v. Red Oak Junction, 76 Iowa 744, 39 N.W. 884; Smith v. Des Moines, 84 Iowa 685, 51 N.W. 77; Chase v. City of Lowell, 151 Mass. 422, (24 N.E. 212). But it is argued that evidence of declarations of the officer showing knowledge on his part, which should be imputed to the city, was not admissible. It is sufficient for this case to say that the declarations shown were made by him, as appears from the record, while in the discharge of his duty as sidewalk commissioner in supervising the erection of these structures, to the end that they should not imperil the safety of persons using the streets. This is within the general rule that declarations of an officer or agent while...