Jackson v. City of Grinnell

Decision Date23 October 1909
Citation122 N.W. 911,144 Iowa 232
PartiesJACKSON v. CITY OF GRINNELL.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Poweshiek County; K. E. Willcoxen, Judge.

Action to recover damages for personal injury. Judgment for plaintiff, and defendant appeals. Affirmed.P. G. Norris and Lyman & Lyman, for appellant.

George H. Crosby and J. H. Patton, for appellee.

WEAVER, J.

On the night of September 9, 1907, the plaintiff, a young man of 27 years of age, is alleged to have fallen and received an injury upon one of the walks of the defendant city; said fall having been occasioned by the defective condition of the walk, and without fault on his part. He charges the defendant with negligence in the maintenance of the walk in question, in that it had permitted the same to become weak, rotten, and dilapidated, and to remain in that condition an unreasonable length of time without proper repair. In his original petition plaintiff alleged that in said walk there was a broken board the parts of which had been allowed to remain unfastened, one of them having dropped below the level of the walk, leaving a hole therein some 12 inches in width and 2 feet in length, and that in passing this place he slipped and fell, his left foot passing through said hole in the walk, and that he thereby fractured his ankle. The case being tried to a jury, the plaintiff, after all the evidence was in, asked and was allowed to file an amendment to his petition to conform his claim to the proof which had been adduced with respect to the manner of his injury. By the amendment he alleged that he was caused to fall either by slipping into a hole in the defective walk, which hole had been caused by the dropping of the inner end of a piece of broken board, still hanging by a nail to the outer stringer, or by slipping on the outer end of a broken board which held to the stringer, but sloped downward toward the middle of the walk, where it was broken off and depressed below the general level. On the filing of this amendment defendant moved the court to strike it, because it did not conform to the proof. This motion being overruled, defendant further moved for a continuance to the next term, on the ground that the amendment presented a new issue, on which it was not prepared to go to trial. The court refused to grant a continuance, and error is assigned on the ruling. There was a verdict for $650. A motion for a new trial because of alleged errors, and on the ground of newly discovered evidence, was overruled; and, judgment being entered on the verdict, defendant brings the case to this court by appeal.

1. Counsel for defendant give first attention to the matter of the amendment which the court allowed plaintiff to make after the close of the evidence. It is said the amendment introduced into the case a new issue, on which defendant was entitled to time to prepare its defense. It is also said there was neither “allegation nor testimony that there was a defective board which caused the injury.” We think this contention cannot be seriously advanced, or counsel have failed to read the record, which they themselves present. The original petition as set out in appellant's abstract alleges that there was a broken board, and that one of the fragments or parts had dropped below the level of the walk, making a hole into which he slipped or fell. Plaintiff testifies that he stepped on a broken board, which turned under his foot and let him slip. On cross-examination he again states that the board was broken, and that it was an old break which had “weathered over.” Indeed it is difficult to perceive why plaintiff should have felt required to file the amendment. It introduced no material new averment. It is true the petition speaks of the two pieces of the broken board as having been left in the walk “unfastened,” while the amendment alleges that one end of the fragment on which plaintiff stepped hung to the outer stringer by a nail, but the essential averment in either case was that the board was broken, making a hole or...

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