Jackson v. City of Knoxville

• Citation: 101 N.W. 88
• Parties: JACKSON v. CITY OF KNOXVILLE.
• Decision Date: 22 October 1904
• Court: United States State Supreme Court of Iowa

101 N.W. 88

JACKSON

v.CITY OF KNOXVILLE.

Supreme Court of Iowa.

Oct. 22, 1904.

Appeal from District Court, Marion County; J. D. Gamble, Judge.

Action to recover damages for a personal injury. Trial to a jury, and verdict and judgment for plaintiff. Reversed.W. C. Kinkead, for appellant.

BISHOP, J.

The injury complained of was caused by plaintiff falling through a coal hole in a sidewalk on one of the public streets of the defendant city. It appears that the hole through which the plaintiff fell was one among several in more or less close proximity to each other in the sidewalk in question. The evidence found in the record bearing upon the nature and character of the alleged defective condition of such particular hole, and, as well, the evidence relied upon to establish the notice to the city of the existence of such defective condition, required by law, is very vague and unsatisfactory. As the judgment must be reversed upon another ground, and in view of a retrial, which may present a record essentially different from the one before us, we withhold any opinion as to the sufficiency of such evidence.

Counsel for appellant makes complaint of several of the instructions given. In our opinion, one only of such instructions (the fifteenth) involves error. That instruction relates to the measure of damages plaintiff may be entitled to recover, and included therein are the damages sustained by her “for any permanent or continuing injury,” etc. Without rehearsing the testimony, suffice it to say that there is no evidence in the record which would warrant a finding of permanent injury. All the injuries sustained by plaintiff, and traceable directly to her fall, were such in character that, in the opinion of the physicians who testified upon the trial, the same would yield to treatment, and, as we have said, there is no evidence from which a contrary opinion could be drawn. We have repeatedly held that an instruction for which there is no foundation in the evidence is prejudicial error.

The cause will be remanded for a new trial.

Reversed.