Humphrey v. City of Muscatine

• Decision Date: 06 March 1934
• Docket Number: No. 42332.,42332.
• Citation: 253 N.W. 57,217 Iowa 795
• Parties: HUMPHREY v. CITY OF MUSCATINE.
• Court: Iowa Supreme Court

217 Iowa 795

253 N.W. 57

HUMPHREY

v.CITY OF MUSCATINE.

No. 42332.

Supreme Court of Iowa.

March 6, 1934.

Appeal from District Court, Muscatine County; D. V. Jackson, Judge.

This is an action at law by the plaintiff to recover damages from the defendant for negligently injuring the plaintiff through the maintenance of a fire plug or stop box on the parking adjacent to a public street. The cause was submitted to a jury, which returned a verdict for the plaintiff, on which judgment was entered. From that judgment, the defendant appeals.

Affirmed.

Harvey Allbee, City Atty., and C. H. Fishburn, both of Muscatine, for appellant.

C. J. Rosenberger, of Muscatine, and Ottesen, Doerr & Weise, of Davenport, for appellee.

KINDIG, Justice.

On June 22, 1930, at about 4:30 in the afternoon, Ruth Humphrey, the plaintiff-appellee, was injured in Muscatine (the defendant-appellant) when she stepped from an automobile and walked across the parking along Second street, where she tripped over a stop box or pipe adjacent to the cement sidewalk, and fell. When falling, the appellee received severe injuries. To recover damages from the appellant for those injuries, the appellee commenced the present action at law. A jury returned a verdict in her favor, and assessed damages against the appellant in the sum of $725. Thereupon the district court entered judgment against the appellant in the appellee's favor. From that judgment the appellant appeals.

[1] I. It is argued by the appellant that the district court erred in refusing to submit to the jury two instructions requested by it. The one instruction relates to the appellee's contributory negligence; and the other has to do with the right of the city to utilize the parking for legitimate purposes, including the maintenance of stop boxes therein.

These requested instructions were refused by the district court. As a matter of fact, in the instructions actually given, the district court, so far as material, embodied the thought contained in the requested instructions. In any event, the appellant is not entitled to a reversal on the errors assigned because no proper exception was taken to the ruling of the district court. Section 11495 of the 1931 Code provides: “Any party may take and file exceptions to the instructions of the court, or any part of the instructions given, or to the refusal to give any instructions as requested, within five days after the verdict in the cause is filed or within such further time as the court may allow, and may include the same or any part thereof in a motion for a new trial, but all such exceptions shall specify the part of the instructions as excepted to, or of the instructions requested and refused and the grounds of such exceptions.” (Italics supplied.)

This statute was not complied with by the appellant in the case at bar. Nowhere does it appear that the appellant set forth the grounds of its exception to the ruling of the district court in refusing to give the requested instructions. On the other hand, the appellant merely excepted to the action of the district court in refusing to give the instructions. When so doing, as before indicated, the appellant did not specify the grounds for such exception. Without such specification, there is no basis on which to assign an error because the district court refused to give the requested instructions. Duncan v. Rhomberg et al., 212 Iowa, 389, local citation 404, 405, 236 N. W. 638;Anthony v. O'Brien, 188 Iowa, 802, local...