Finnegan v. City of Sioux City

Decision Date17 October 1900
Citation112 Iowa 232,83 N.W. 907
PartiesFINNEGAN v. CITY OF SIOUX CITY.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from district court, Woodbury county; J. F. Oliver, Judge.

Action for damages on account of personal injuries caused by a defective street. A jury was waived by the parties, and trial had to the court. From a judgment in plaintiff's favor, defendant appeals. Affirmed.F. E. Gill, for appellant.

E. P. Farr and G. H. Flynn, for appellee.

WATERMAN, J.

Plaintiff, while carrying a package to put in the buggy of a friend, who had stopped in the street a short distance from the curbstone, stepped into a hole in the driveway and fell, causing the injuries for which he sues.

1. Plaintiff had a right to go upon the driveway of the street for the purpose he did. If his injuries were caused by a defect that rendered the driveway unsafe for usage as such, certainly the city would be liable. Lamb v. City of Cedar Rapids (Iowa) 79 N. W. 366;Baker v. City of Grand Rapids (Mich.) 69 N. W. 740. There was evidence tending to show that the hole into which plaintiff stepped was near the sidewalk line; that it was about three feet long, four to six inches wide, and eight inches deep, and at the time of the accident was filled with slush caused by melted snow. The trial court was also warranted in concluding that the defect had existed for some three months prior to the accident, and that the city had notice thereof. The finding that defendant was negligent was manifestly justified. The defect, if as shown by the evidence to which we have referred, was dangerous to those using the street for driving purposes.

2. Was plaintiff guilty of contributory negligence? The time of the accident was between 7 and 8 o'clock of a November evening. There were lights in adjacent stores, and a street lamp near by was burning. Plaintiff did not know of the existence of this hole, although he was well aware that the street paving was rough. The package he was carrying was a heavy jar of butter. He was proceeding as one ordinarily would under the circumstances. Bearing in mind that it was not negligence per se for him to walk in the street where he did (Baker v. City of Grand Rapids, supra), we must hold that the question of his negligence was one of fact, and the finding of the trial court has the force and effect of the verdict of a jury. Such finding having substantial support in the evidence, under our well-established rule we shall not disturb it. Buggy Co. v. Cathels (Iowa) 81 N. W. 164.

3. This action was not brought within six months after the accident, and it is contended that the evidence does not show that notice of the time and place of injury was served on defendant within 90 days after the injury, as required by section 1, c. 25, Acts 22d Gen. Assem. The condition of the record on this subject is as follows: Plaintiff offered in evidence such a notice (Exhibit A), proper in form, so far as appears. It was objected to by defendant as being a copy, and no ruling was made on the objection. As the loss of the original had been shown, the court might properly have overruled the objection; and, in view of what further occurred, we...

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4 cases
  • Thoorsell v. City of Va.
    • United States
    • Supreme Court of Minnesota (US)
    • July 20, 1917
    ......Dec. 57;Baker v. City of Grand Rapids, 111 Mich. 447, 69 N. W. 740;Finch v. Village of Bangor, 133 Mich. 149, 94 N. W. 738;Finnegan v. City of Sioux City, 112 Iowa, 232, 83 N. W. 907;City of Louisville v. Haugh, 157 Ky. 643, 163 S. W. 1101. It is clear also that the degree of care ......
  • Thoorsell v. City of Virginia
    • United States
    • Supreme Court of Minnesota (US)
    • July 20, 1917
    ......Dec. 57; Baker. v. City of Grand Rapids, 111 Mich. 447, 69 N.W. 740;. Finch v. Village of Bangor, 133 Mich. 149, 94 N.W. 738; Finnegan v. City of Sioux City, 112 Iowa 232,. 83 N.W. 907; City of Louisville v. Haugh, 157 Ky. 643, 163 N.W. 1101. It is clear also that the degree of ......
  • Thoorsell v. City of Virginia
    • United States
    • Supreme Court of Minnesota (US)
    • July 20, 1917
    ...v. City of Grand Rapids, 111 Mich. 447, 69 N. W. 740; Finch v. Village of Bangor, 133 Mich. 149, 94 N. W. 738; Finnegan v. City of Sioux City, 112 Iowa, 232, 83 N. W. 907; City of Louisville v. Haugh, 157 Ky. 643, 163 N. W. 1101. It is clear also that the degree of care required of plaintif......
  • City of Cherokee v. Ætna Life Ins. Co. of Hartford, Conn.
    • United States
    • United States State Supreme Court of Iowa
    • March 14, 1933
    ...statute has been construedto include knowledge or information acquired by the physician by observation or examination. Finnegan v. Sioux City, 112 Iowa, 232, 83 N. W. 907. And if the relationship of physician and patient had existed at the time in question, the ruling would have been correc......

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