Hoover v. Town of Mapleton

• Decision Date: 07 February 1900
• Citation: 81 N.W. 776,110 Iowa 571
• Parties: HOOVER v. TOWN OF MAPLETON.
• Court: Iowa Supreme Court

110 Iowa 571

81 N.W. 776

HOOVER

v.TOWN OF MAPLETON.

Supreme Court of Iowa.

Feb. 7, 1900.

Appeal from district court, Monona county; William Hutchinson, Judge.

Plaintiff tripped upon a loose board in a walk in defendant town, and fell, causing the injuries for which she sued. From a verdict and judgment in her favor, defendant appeals. Affirmed.Chas. E. Chrisman and C. E. Cooper, for appellant.

J. A. Prichard and J. W. Anderson, for appellee.

WATERMAN, J.

After the trial in the court below, plaintiff died, and T. B. Lutz, the administrator of her estate, was substituted as plaintiff. The errors, as assigned, involve considerable repetition. We shall depart, therefore, from the order adopted by counsel for discussion, but shall endeavor to dispose of all questions presented. It is not disputed that the walk was, in fact, defective, but it is said there was no evidence of notice to the city of such defect. Constructive notice is relied upon by plaintiff. The accident occurred by reason of a board tipping up at one end, and tripping plaintiff's intestate. Mrs. Hoover, the original plaintiff, testified:“Knew sidewalk was ‘teetery’ and saw a board out at this place before the accident. * * * I had passed over the walk frequently before the accident. Knew the walk was teetery and dangerous. Had noticed loose boards. They would not tip when walking in center of walk. Saw board loose several times, and out in the street once.” A. A. Thomson testifies: “Had noticed boards loose at this place and along lot 23 at different times during the past six months.” John Hoover says: “Side stringers have been rotted over six months. * * * None of the stringers would hold nails, and boards would fly up. * * * The board that tripped plaintiff had been out several times before, and had been placed in the walk without fastening.” Mrs. Jennie Brown's statement is that “some of the boards at this place had been loose three or four months before the accident,” but, so far as she knew, this particular board had only been loose three or four days. We think this was sufficient to sustain the finding of the jury that the town should have known of the existence of the defect. Lorig v. City of Davenport, 99 Iowa, 479, 68 N. W. 717, and cases cited therein.

2. Next we have to consider the claim of contributory negligence on the part of plaintiff's intestate. She testified that she knew the walk was “dangerous.” She evidently meant “defective,” for she adds, “Did not know it was dangerous at the time of the accident, as the board was in place, and looked all right.” It was shown on the part of defendant that there was another and a convenient way by which plaintiff's intestate might have proceeded to her destination. Under proper instructions, the court left it to the jury to say whether there was contributory negligence. This was proper. See Sylvester v. Town of Casey (decided at present term) 81 N. W. 455.

3. There was no error in refusing to give No. 1 of the instructions asked by defendant, for the principle announced is covered by paragraph 15 of the charge given. No. 2 of the instructions asked by defendant embodied the thought that, if plaintiff knew the walk was unsafe, she was required to use more than ordinary care in passing over it. This is not correct. If plaintiff was warranted in going upon the walk at all, she was required only to use ordinary care,--that is, the standard; though it is true that ordinary care differs under varying...