Hollingsworth v. City of Ft. Dodge
| Decision Date | 19 November 1904 |
| Citation | 125 Iowa 627,101 N.W. 455 |
| Parties | HOLLINGSWORTH v. CITY OF FT. DODGE. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Webster County; J. R. Whitaker, Judge.
Action at law to recover damages for personal injuries received by plaintiff, resulting from his being thrown from an omnibus in consequence of a defect in one of the streets in the defendant city. Defendant's defense was a general denial. The case was tried to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals. Affirmed.M. J. Mitchell, for appellant.
Kenyon & O'Connor, for appellee.
Fourth street, in the defendant city, runs from the business part to the passenger depot of the Illinois Central and Minneapolis & St. Louis Railroads. It is one of the main thoroughfares of the municipality. On June 10, 1902, plaintiff was engaged in driving an omnibus, which met the incoming and outgoing trains at the depot above mentioned. He had been engaged in this business for about three weeks, and had driven over the street in question many times daily during this three weeks. Plaintiff claims that this street was defective, in that at or near the depot, and at the intersection of what was formerly known as Commerce with Fourth street, the city had placed or permitted to be placed therein large boulders, and had permitted a ditch or drain to be constructed near a brick crossing which had been constructed across the street; that the said boulders and the ditch or drain made the said street defective and unsafe; and that plaintiff, while in the exercise of due care on his part, was injured by reason of the omnibus coming in contact with said boulders and running into the ditch, throwing him to the ground, fracturing his jaw, and otherwise hurting his head and back. Defendant's principal defense was contributory negligence on the part of the plaintiff.
There was ample evidence to support plaintiff's charge of negligence on the part of the city, and the case comes to us for review with a claim on the part of the defendant that the trial court erred in its ruling on the admission and rejection of testimony, in its instructions, in denying defendant's motion for a directed verdict in its favor, in overruling defendant's motion for judgment on the special findings of the jury, and in refusing to sustain its motion for a new trial. It is also claimed that the evidence conclusively shows contributory negligence on the part of the plaintiff.
We shall first take up the rulings on evidence. Plaintiff alleged that, by reason of being thrown from the vehicle, he suffered a fractured jaw, and other injuries to his head and back; that he had suffered great pain and mental anguish therefrom; and that the injury to his back was permanent. He was permitted to show, over defendant's objection, that after he received his injuries he had fainting or dizzy spells. It is contended that this evidence was irrelevant, because no claim was made in the petition for damages on account thereof. True, there is no such express averment in the petition, but, under the allegations thereof which we have quoted, we think the testimony was admissible as showing the extent of the injuries to plaintiff's head, and the pain and anguish he had suffered on account thereof. Special damages were not claimed on account of this fainting, but there was no necessity for such a charge. The testimony was admissible for the purpose of showing the extent of the injury suffered by the plaintiff. Kircher v. Town of Larchwood, 120 Iowa, 580, 95 N. W. 184. The cases cited in support of defendant's contention are not in point.
2. Plaintiff and other witnesses were permitted to testify as to the condition of Fourth street at other places than where the accident occurred, of Commerce street, and of Sixth street, which, as we understand, is a narrow passageway just north of the depot, and between the place of accident and the depot. The admission of such testimony is said to be erroneous. Had this been offered for the purpose of showing negligence on the part of the city, or notice to the city of the alleged defects, doubtless it would have been error to have received it. But this was not the object. Plaintiff was required to show his freedom from contributory negligence, and if he knew of the defects complained of, and knew it was imprudent for him to attempt to pass over them, then it was his duty to take some other route to reach his destination, if there was one which was safe and open to him. For the purpose of showing that there was no other safe and convenient way open to him, this testimony was admissible. For present purposes, the order of its introduction is not subject to review. To get to the depot, plaintiff was compelled to go south on Fourth street directly to the depot; south on Fifth, Sixth, or Seventh, which are east of Fourth; and northwesterly on Commerce, which intersects Fourth near the south end thereof, and runs in a southeasterly direction from Fourth to the depot; or south on some of the streets west of the depot, and east on the narrow passageway just north of the depot, which is called “Sixth Street.” Hence the condition of Commerce, Fourth, and what we have just called “Sixth” streets was a material inquiry in the case for the purposes...
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