Hall v. Inc. Town of Manson

• Decision Date: 29 October 1896
• Citation: 68 N.W. 922,99 Iowa 698
• Parties: HALL v. INCORPORATED TOWN OF MANSON.
• Court: Iowa Supreme Court

99 Iowa 698

68 N.W. 922

HALL

v.INCORPORATED TOWN OF MANSON.

Supreme Court of Iowa.

Oct. 29, 1896.

Appeal from district court, Calhoun county; G. W. Paine, Judge.

The plaintiff claims that on the evening of October 20, 1891, in company with another lady, she undertook to pass over Second street, in the town of Manson, Iowa, on the sidewalk crossing the same at a point near the northwest corner of the crossing of Main street and Second street, and that, without negligence on her part, and without knowledge of the existence of an excavation, and of its close proximity to said cross walk, she fell into an excavation, was violently thrown to the bottom of it, and severely injured. She alleges that she is permanently disabled by reason of said injuries, and asks damages in the sum of $4,000. She alleges that said crossing was dangerous for pedestrians to travel over by reason of a deep excavation and pitfall made in the earth, by defendant, at both sides of said crossing. This excavation was about seven feet deep and extended close up to the edge of the crossing, said crossing being but three feet wide. That on said October 20, 1891, and long prior thereto, the defendant had negligently and carelessly permitted said excavation to exist, and said crossing to remain in said unsafe and dangerous condition, and had failed and neglected to construct or place a barrier or hand rail to prevent persons passing over said walk from falling into said excavation, and failed to place any warning, light, or signal to indicate to or warn persons passing over said crossing of the existence of said excavation. It appears that the town, for the purpose of laying its water mains, had excavated a ditch extending along Second street and across Main street. A water pipe had been laid in the ditch, but the excavation had not been filled prior to the accident. The defendant admitted its incorporation, and that the plaintiff's claim had not been paid, and denied all other allegations in the petition. The cause was tried to a jury, and a verdict returned for the sum of $2,250, on which judgment was entered. The defendant appeals. Reversed.E. A. Walton, for appellant.

Botsford, Healy & Healy, for appellee.

KINNE, J.

1. This case has once before been in this court, and is reported in 90 Iowa, 585, 58 N. W. 881. It is insisted that plaintiff's negligence contributed to produce the injury of which she complains. It is said that she was possessed of such knowledge touching the excavation as should have warned her to have taken another way to her destination, and thus have avoided the danger. The evidence does not show that plaintiff had any knowledge whatever of the existence of the excavation into which she fell. True, it appears that she knew that the town was engaged in putting in water. She had seen some of the ditches, and knew they were digging such ditches in the business part of the town; she had seen one of these ditches on the day of the accident. She could have taken another route just as direct to reach the place she was going to. She was not under such circumstances negligent in attempting to go ever the crossing, having no knowledge of the existence of the excavation. She testifies that it was so dark she could not see the edges of the crossing; that there was no light at or near the excavation; and there is no claim that there were barriers to keep people from falling into it. If her testimony be taken as true, and it is supported, she was in the exercise of due care. Counsel's argument is based upon the claim that when one injured has knowledge of the danger he must use such knowledge so as to avoid injury if possible. Such is no doubt the law, but the facts of this case do not bring it within that rule. If the evidence to the effect that there was no light at or near the excavation is to be believed, then it is clear that, having no knowledge of the excavation, and no light by means of which she might see her danger, and there being nothing to prevent her stepping into the hole, and she being otherwise in the exercise of due care, she is not chargeable with negligence in not discovering and avoiding the excavation. Her knowledge that the town was laying water mains does not charge her with notice of this particular excavation. Even if she did know of the danger, she would not be negligent in attempting to go over the crossing if she exercised due care in so doing. Hers was not a case of knowingly and consciously incurring danger, hence the cases relied upon are not applicable. Counsel also argue that the only duty the town owed to plaintiff was to keep its walks and crossings in a reasonably safe condition. He insists that if the crossing itself was in fact good and sufficient the town was not liable for an injury received by one when off of said crossing. The following cases are cited: O'Laughlin v. City of Dubuque, 42 Iowa, 541;Alline v. City of Le Mars, 71 Iowa, 654, 33 N. W. 160;Ely v. City of Des Moines, 86 Iowa, 55, 52 N. W. 475. These cases in their facts are all different from the one at bar. In the Dubuque Case the person was injured while crossing the street, not on a regular crossing, and it is said: “Sidewalks and crosswalks alone are constructed for foot travelers, and he who, without some good and sufficient reason, walks elsewhere and is injured should not be permitted to complain that he has been injured through the fault and negligence of the city.” In Alline's Case the injured party was able to see the limits of the walk, and voluntarily, and without necessity therefor, stepped from the walk without knowing she could safely do so. Ely's Case was one where the pedestrian on a city street unnecessarily left the street, went into an alley, and fell into an area way. None of the cases are controlling in the one under consideration. In this case the crossing was being made on the walk provided by the town, and owing to the darknessplaintiff inadvertently stepped off of the crossing into an unguarded, and, as some of the evidence shows, unlighted, excavation, which came up to the very edge of the crossing. The jury must have found that plaintiff was not negligent, and we cannot disturb their finding in that respect.

2. Counsel for appellant insist that the evidence shows that the defendant was not negligent. The argument is that as the defendant had a crossing which was, in and of itself, good, and inasmuch as it had a right to excavate for its water mains, and because the excavation formed no part of the crossing walk, therefore it cannot be held liable for an injury received to one who, in the exercise of due care, and unable by reason of the darkness to discover the limits of the crossing walk, and not knowing of the excavation adjoining said walk, steps into the same. On the same theory a city might erect a bridge over a river and erect no guard rails to keep the pedestrians from stepping over its side and falling into the stream below. The duty imposed upon the town to keep its crossings in a reasonably safe condition for the use for which they were intended “extends not merely to the surface of the street or walk, but to those things within its control which endanger the safety of those using the street or walk properly. * * * In a statutory sense a street or sidewalk is defective when it is not in a reasonably safe condition for the use for which it is intended. It may be due to the presence of something which is a menace to the safety of the users of the way, as well as to insufficient construction or the absence of needed labor or material.” Bliven v. City of Sioux City, 85 Iowa, 351, 52 N. W. 246. The real question is, is the defect complained of in the walk itself, or so near it as to endanger the persons of those properly using it. Rowell v. Williams, 29 Iowa, 210;Ross v. City of Davenport, 66 Iowa, 548, 24 N. W. 47;Duffy v. City of Dubuque, 63 Iowa, 172, 18 N. W. 900;Pittenger v. Town of Hamilton, 85 Wis. 356, 55 N. W. 423. It was, then, a question for the jury as to whether the defendant was negligent, and as there was evidence tending to show such negligence, as well as evidence to the contrary, the finding of the jury in that respect should not be disturbed.

3. The court told the jury in the seventh division of the charge, in substance, that if the defendant had caused a light, sufficient to apprise a person of ordinary prudence of the existence of the ditch, to be placed at or near it on the evening of the accident, and before it happened, then the defendant was not guilty of negligence unless it was shown that defendant had caused said light to be removed, or had actual notice or knowledge of said removal, and had sufficient time thereafter to replace the same. It is urged that the verdict is against this instruction and against the evidence. There was much evidence tending to establish the fact that a lamp or lamps were lighted at the excavation on the evening of the accident, and before it happened. There was evidence also to the contrary. There was much evidence showing that when the accident occurred there was no light at or near the excavation. There was an undoubted conflict touching this matter, and it cannot be said that the finding of the jury was contrary to either the instruction or the evidence. Again, if the evidence had been undisputed that the light was burning when the accident occurred, still it would be a question for the jury, under the instruction, as to whether it was a sufficient light to apprise one of the danger.

4. Plaintiff called one Lemoin as a witness, and showed by him that he was mayor of the town at the time the accident happened; that the town was then engaged in laying mains for water; that the excavations were made by contractors for the town. Defendant afterwards called the same witness, and he testified in chief that lamps were lighted at the excavation on the night of the accident, and before it happened. On cross-examination he was asked...