Homan v. Franklin Cnty.

• Decision Date: 07 October 1896
• Citation: 68 N.W. 559,98 Iowa 692
• Parties: HOMAN v. FRANKLIN COUNTY.
• Court: Iowa Supreme Court

98 Iowa 692

68 N.W. 559

HOMAN

v.FRANKLIN COUNTY.

Supreme Court of Iowa.

Oct. 7, 1896.

Appeal from district court, Wright county; D. R. Hindman, Judge.

Action to recover $15,000 damages for personal injuries alleged to have been sustained by reason of negligence on the part of the defendant's officers in the construction of one of its highway bridges, and in keeping the same open to public travel when in a dangerous and defective condition. Defendant answered, denying generally, and alleging that whatever injuries plaintiff sustained were caused by his own negligence. A verdict was returned in favor of the plaintiff for $2,500, and judgment rendered thereon. Both parties appeal. Defendant will be designated as appellant. Affirmed.Taylor & Evans, for appellant.

J. H. Scales and Nagle & Nagle, for appellee.

GIVEN, J.

1. We first consider the errors assigned and discussed on defendant's appeal. The injuries complained of were caused by the breaking down of one of the defendant's highway bridges when plaintiff was driving over it, because, as is alleged, of defective construction and want of repairs. On a former appeal by the defendant the judgment was reversed. See 90 Iowa, 185, 57 N. W. 703. It is alleged in the petition that, because of the failure of the defendant to make repairs, the bridge “became decayed, shaky, out of repair, timbers rotten and displaced, so that it was obviously defective and dangerous continuously for more than a year prior to the accident; that defendant could have readily discovered the defective and dangerous condition in ample time to have made repairs and prevented said accident.” Plaintiff was examined on his own behalf on both trials, and on the former testified as to his knowledge of the condition of the said bridge before the accident. On the last trial he was not examined on that subject, but, under a stipulation that either party might introduce the reporter's transcript of the evidence on the former trial, subject to objections on the ground of immateriality, the defendant read in evidence the plaintiff's statement as to his knowledge of the condition of the bridge. Defendant contends that, because of said allegation in the petition and the plaintiff's own evidence, the court erred in not sustaining defendant's motion for a verdict on the ground that plaintiff was guilty of negligence contributing to the injuries complained of. It is insisted that, if the bridge was as obviously defective as alleged, plaintiff would, by proper care, have known it; that his evidence shows that he did know the condition; and that this court virtually held on the former appeal, upon the same allegation and evidence, that he was guilty of such contributory negligence as to defeat a recovery. The allegation is not that the bridge was obviously defective to those traveling over it, but so that the defendant's officers could have discovered it by exercising the care required. It was not held on the former appeal that upon the petition and evidence, or upon either, the plaintiff was guilty of contributory negligence. That was held to be a question for the jury, and that an instruction on that subject, asked and refused, should have been given. We still think it was for the jury to determine whether plaintiff was guilty of contributory negligence. The court, in instructing upon the subject of notice to the defendant of the condition of the bridge, directed the jury in substance as follows: That to return a verdict for the plaintiff they must find that defendant had actual notice of the defect in the bridge in time to have repaired it before the accident, or “that the defect was of such manifest, open, and notorious character as to be observable to all” for such a length of time that by reasonable diligence defendant's officers should have discovered and repaired it before the accident, or that the defect, if not open and notorious to all persons, was of such a nature, and had existed for such a length of time, that defendant's officers, by proper diligence, should have discovered and repaired it before the accident occurred. Defendant's counsel insist that if the defect was of such manifest, open, and notorious character as to be observable to all, “plaintiff must or should have known it, and, therefore, was negligent in going upon the bridge”; also, that there is neither allegation nor proof of actual notice to the defendant of the condition of the bridge, and therefore the court erred in instructing on that subject. That part of the instructions complained of is certainly favorable to the defendant, in that, taken alone, it requires actual notice, or that, to constitute constructive notice, the defect must have been observable to all. Taking the entire instruction together, it gave the correct rule as to constructive notice to the defendant, and there was no prejudice to the defendant that, in stating the law as to notice, actual notice was mentioned; neither was there any prejudice to the defendant in saying that, if the defect was “observable to all,” the defendant's officers would be presumed to have known of it. It does not follow from this statement in the instructions that the defect was observable to all persons, nor that plaintiff was negligent in going upon the bridge. The case was tried throughout upon the claim of constructive notice, the question of plaintiff's negligence was properly submitted to the jury, and the errors, if any, in these instructions, were without prejudice to the defendant.

2. Section 2610 of the Code provides as follows: “But no action shall be brought against any county on an unliquidated demand, until the same has been presented to such board [of supervisors], and payment demanded.” Plaintiff, after stating his claims in his petition, alleges that he “duly presented such claim to defendant's board of supervisors, who have neglected and refused to pay said claim.” It appears that prior to the commencement of this action plaintiff filed with said board his claim, duly verified, stating in substance as follows: That on the 12th day of June, 1890, he was seriously and permanently injured by the falling of the bridge over Beaver creek, near Ackley; that the bridge was defective and unsafe, and had been for a long time; and that the accident was the result of negligence in failing to keep the bridge in a reasonably safe condition. The statement recites certain injuries sustained; that he sustained other injuries;...