Hall v. Incorporated Town of Manson
| Decision Date | 12 May 1894 |
| Citation | 58 N.W. 881,90 Iowa 585 |
| Parties | MINNIE HALL v. THE INCORPORATED TOWN OF MANSON, IOWA, Appellant |
| Court | Iowa Supreme Court |
Appeal from Calhoun District Court.--HON. GEORGE W. PAINE, Judge.
ACTION for damages resulting from personal injuries. Trial to jury. Verdict for plaintiff. Defendant appeals.
Reversed.
E. A Walton and Stevenson & Lavender for appellant.
Botsford Healy & Healy for appellee.
I.
In 1891 the defendant town, for the purpose of laying its mains for water, had excavated a ditch about six feet deep on and along Second street, and near the north side thereof, which excavation extended across Main street in said town. There was a crossing on the west side of Main street extending over said Second street, and said excavation came up to the sides of said crossing near the north side of Second street. This sidewalk crossing was three feet wide. The excavation spoken of had existed for some weeks prior to the occurrence of the injury in question. A water pipe had been laid in the bottom of the ditch, but the ditch had not been filled, prior to the accident. On the evening of October 20, 1891, plaintiff and another lady undertook to pass over said Second street on the crossing before mentioned, and in doing so plaintiff fell into the excavation, and suffered the injury for which she now seeks to recover. It is claimed on part of plaintiff that in attempting to cross the street she was in the exercise of due care, and that the night was dark; that there was no light or signal to warn her of the excavation, nor any barriers to prevent her from falling into it; that she was unable to discover the limits of the crossing by reason of the darkness; that she had no knowledge of the existence of the excavation, and that the defendant was negligent in not erecting barriers to prevent pedestrians from falling into the excavation, and in failing to place a light or signal thereat. The defendant admitted its incorporation, and that plaintiff's claim had not been paid, and denied all the other allegations of the petition. There was a verdict for three thousand dollars for plaintiff.
II. Very many errors are assigned and argued, some of them arising upon the admission and rejection of evidence. As, for errors in the giving of instructions, the case must be reversed, we need not consider the errors above referred to; for on another trial the same questions are not likely to arise. Nor, in view of our disposition of the case, would it be proper for us to pass upon the sufficiency of the evidence to support the finding of the jury, as it may be materially different on another trial.
III. It is urged that the court erred in giving the second instruction. In this instruction the jury is told that defendant is bound to keep its streets, sidewalks and crossings in a safe condition for public travel. In the third, fourth, and seventh instructions the jury was properly told, in substance, that it was the defendant's duty to use ordinary care and skill to make its streets and crossings reasonably safe for the use of travelers; and in the third instruction it was told that defendant was not obliged to keep the crossing absolutely safe. Considering all of these charges together, we do not think it can be justly claimed that the jury was misled to the defendant's prejudice. We think it may fairly be presumed from the entire charge that the jury would understand that the duty of defendant went only to the extent of using ordinary care in keeping its crossings in a reasonably safe condition for the use of travelers.
IV. Complaint is made of the sixth instruction given by the court. It is as follows: This instruction is criticized by counsel, first, as assuming that plaintiff had in fact received the injury; second, because it directed the jury to consider, as bearing on the question of negligence, the construction and width of the crossing; third, because it was uncertain, misleading, and inconsistent. It is true that by the pleadings the fact of injury was denied by defendant, and hence may be said to be a question for determination by the jury, under the evidence.
We fail, however, to find any conflict whatever in the evidence touching the fact that plaintiff was in fact injured by falling into the excavation. There is nothing to show that the injury was received at any other time, or in any other manner. If it be conceded that the instruction is open to the charge that it assumes that the accident occurred by reason of plaintiff's falling into the ditch still it could work no prejudice to defendant, as all of the evidence shows that such was the fact. Under such circumstances it is not error for the court in an instruction to assume the existence of a fact about which there is no conflict in the evidence, and which fact is fully established by the evidence. Russ v. The War Eagle, 14 Iowa 363; Hughes v. Monty, 24 Iowa 499; State v. Meshek, 61 Iowa 316, 16 N.W. 143; Wood v. Porter, 56 Iowa 161, 9 N.W. 113. We see no error in that part of the charge which directs the jury to take into consideration all the circumstances surrounding the accident, including the construction and width of the crossing, in determining as to whether or not plaintiff was in the exercise of ordinary care. In any event, no prejudice could have resulted to defendant from this direction of the court. Nor do we think that the claim that the instruction was misleading, uncertain, and inconsistent is well founded. It may be conceded that the thought which the court undertook to express as to the degree of care required of the plaintiff was not happily stated, and not as clearly as it might have been. By the instruction the jury was told, in substance, that the same degree of care was to be used at all times, but that greater caution or watchfulness might be required at night than in the daytime. This rule is held in Stier v. City of Oskaloosa, 41 Iowa 353. Now, the degree of care in such a case is ordinary care, whether the accident occurs in the daytime or nighttime. What will constitute ordinary care, however, will depend upon circumstances, and these may well include a consideration of...
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