Hawley v. City of Atlantic

Decision Date16 October 1894
Citation60 N.W. 519,92 Iowa 172
PartiesW. A. HAWLEY, Administrator, Etc., v. CITY OF ATLANTIC, Appellant
CourtIowa Supreme Court

Appeal from Cass District Court.--HON. H. E. DEEMER, Judge.

ACTION for the recovery of damages for the death of Frederick J Hawley, a minor child. Verdict and judgment for plaintiff. Defendant appeals.

Affirmed.

Rockafellow & Scott and J. W. Scott for appellant.

DeLano & Meredith, Willard & Willard and H. G. Curtis for appellee.

KINNE J. DEEMER, J., took no part.

OPINION

KINNE J.

I.

The petition charges that the death of plaintiff's intestate was caused by the negligence of the defendant in permitting parties to excavate in one of the public streets of defendant city, and to take therefrom sand, thereby making a hole, the banks of which were nearly perpendicular, and liable to give way, causing the death of anyone who happened to be in said pit; that the condition of said pit was open and notorious for such a length of time that, in the exercise of ordinary care, defendant and its agents and employees could have known thereof, and have prevented accidents by placing obstructions about said pit, or causing it to be filled; that on November 27, 1890, Frederick J. Hawley, then a small boy, about seven years of age, and living in the vicinity of said pit, while passing along or playing in the public streets of defendant, was tempted and induced by the situation of said excavation to go into the same for the purpose of digging and hauling sand therefrom in play, and while therein, and without fault or negligence on his part, and by reason of the negligence of defendant, the earth caved in, and fell upon him, causing his death. Damages are claimed in the sum of fifteen thousand dollars. The answer denies all of the allegations of the petition. The cause was tried to a jury, who returned a verdict for plaintiff for five hundred dollars. the court submitted to the jury the following, among other, special interrogatories: "Do you find that the deceased left the street and went upon the adjacent premises, and was there killed by the banks of said pit caving upon him?" "Yes." "Do you find that the accident would have occurred even if the city had at the time and place maintained guard railings or barriers reasonably sufficient for the protection of persons lawfully using the said street?" "Can't say." Defendant moved for a judgment on the special findings on the grounds that it was not shown that it was guilty of any negligence; that the jury failed to find that the accident occurred by reason of the want of barriers or guard rails; that there is no evidence to support the general verdict; that the special findings are opposed to and inconsistent with the general verdict, and show that defendant is not liable. The court overruled the motion, and entered a judgment on the verdict. None of the evidence is set out in the record.

II. As counsel rely only upon the interrogatories and answers above set out, we have omitted those from which nothing is...

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