Goodwin v. City of Des Moines

• Citation: 7 N.W. 411,55 Iowa 67
• Parties: GOODWIN v. CITY OF DES MOINES.
• Decision Date: 09 December 1880
• Court: United States State Supreme Court of Iowa

55 Iowa 67

7 N.W. 411

GOODWIN

v.CITY OF DES MOINES.

Supreme Court of Iowa.

Filed December 9, 1880.

Appeal from Polk circuit court.

Action to recover damages alleged to have been received by the plaintiff caused by the defective condition of a street in said city. Trial by jury. Verdict and judgment for the defendant, and the plaintiff appeals.H. W. Maxwell and Phillips, Goode & Phillips, for appellant.

Miller & Godfrey, for appellee.

SEEVERS, J.

The cause of action stated in the petition is as follows: “That said defendant, about the month of August, 1875, directed and caused the excavation and digging down of Lyon street, East Des Moines, in Stewart's addition, running east and west between Tenth and Eleventh streets, so as to leave a high embankment on the north side, just where a pathway led out from the sidewalk on said Lyon street across an open piece of ground to the church of the United Brethren Society, which stands on the corner of Tenth and Williamson streets; that there was a good, safe sidewalk along the north side of said Lyon street, and a safe turning out and coming in by said pathway from the street before said defendant had the same dug down and removed; that said pathway was generally used, and by a great many people, in going to and returning from said church, and to and from their homes lying in that vicinity, north of Lyon street, and there was no other way, or street or alley, provided for use as aforesaid, and Tenth street was only opened from the south up to Lyon street, and north thereof was fenced up, all of which facts had existed for several years and were well known to the said city defendant; that when said defendant had said Lyon street so dug down, it left a steep embankment on the north side thereof, from six to eight feet, nearly perpendicular at and for many yards on either side east and west of the place where said generally-used pathway came into said Lyon street from the north, and provided no other street, road, or pathway for the use of the public in lieu of such pathway; that said defendant put up no barrier or obstruction to indicate or guard against the danger of coming into Lyon street by said pathway after such excavation, but illegally, wrongfully, wilfully, and negligently left the same in such dangerous condition for a long period of time, to-wit, for four or five months; that plaintiff, on Sunday night, the twenty-fourth of October, 1875, had attended divine services at said church, and was returning to her home, which was then on the west side of the Des Moines river,--the night was dark--it was about 10...