Hunt v. City of Dubuque

• Decision Date: 12 December 1895
• Citation: 65 N.W. 319,96 Iowa 314
• Parties: HUNT v. CITY OF DUBUQUE.
• Court: Iowa Supreme Court

96 Iowa 314

65 N.W. 319

HUNT

v.CITY OF DUBUQUE.

Supreme Court of Iowa.

Dec. 12, 1895.

Appeal from district court, Dubuque county; Fred O'Donnell, Judge.

Action at law to recover for personal injuries alleged to have been caused by negligence on the part of the defendant. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals.J. E. Knight and W. J. Knight, for appellant.

Logueville & McCarthy, for appellee.

ROBINSON, J.

On the 11th day of April, 1893, the plaintiff, while walking on a sidewalk in a street of the defendant, fell, and received the injuries of which he complains. He alleges that his fall was caused by defects in the walk, of which the defendant had notice, and that it was negligent in not repairing it and making it safe for travel. The defendant denies negligence and liability on its part. The jury returned a verdict in favor of the plaintiff for $4,000. A motion for a new trial having been filed, the court ordered that it be sustained, unless the plaintiff should take judgment for $3,200. He elected to take judgment for that amount, and it was so rendered.

1. The appellant complains of the ruling of the court in permitting a witness, named Chewning, to state the condition of the walk at the time of the trial. The court had ruled that the condition of the walk after the accident occurred was immaterial, excepting as it was shown to be the same then as it was at the time of the accident. The witness named described the condition of the walk as he found it an hour or two after the accident, and was then asked: “The place where Hunt fell, has that been changed?” An objection was overruled, and the witness answered: “Yes, sir; I think there is a new board put in there.” He was then asked: “Well, how is the sidewalk as to being in the same condition now that it was at the time you examined it? Is it or is it not?” An objection to this question was also overruled, and the witness answered: “It is in a better condition than it was then.” It will be noticed that neither question called for any answer but “Yes” or “No,” and what was said more than that was not called for by the question, and was not in any manner attacked. So far as the answers were required by the questions, they stated a fact which was not in dispute. Several witnesses testified without objections--one of them for the defendant and at its instance--that the walk was repaired within a short time after the accident occurred. Hence the defendant could not have been prejudiced by the rulings to which it objects.

2. The appellant complains of testimony given by Mrs. Dickenson in regard to the condition of the walk both before and after the accident. She lived in the house next to the sidewalk in question more than three years, and was familiar with its condition during that time. She moved from the house about six months before the accident occurred, but noticed its condition after she moved, and at about the time of the accident. She described the condition of the walk the year before the accident, and stated, in effect, that its condition was substantially unchanged at about the time of the accident. This was competent evidence to show the actual condition of the walk, and that it had been in a defective and dangerous condition for such a length of time that the defendant should be charged with knowledge of the defect before the accident occurred. The witness was also permitted to state that she had seen people stumble at the defective part of the walk, and that she saw an old gentleman stop and push the board down with his cane. The testimony tended to show the condition of the walk, and was material for that purpose, when taken with other evidence, to show that the condition continued until the accident occurred. Smith v. Des...