Johnson v. City of Sioux City

• Decision Date: 20 May 1901
• Citation: 86 N.W. 212,114 Iowa 137
• Parties: JOHNSON v. CITY OF SIOUX CITY.
• Court: Iowa Supreme Court

114 Iowa 137

86 N.W. 212

JOHNSON

v.CITY OF SIOUX CITY.

Supreme Court of Iowa.

May 20, 1901.

Appeal from district court, Woodbury county; F. R. Gaynor, Judge.

Action to recover for personal injuries sustained, as is alleged, by reason of the negligence of the defendant, and without fault or negligence on the part of the plaintiff. Defendant answered, denying that it was negligent as charged, denying that plaintiff was damaged in the sum claimed, and alleging that, whatever injury plaintiff received, he received through his own fault and negligence. Verdict and judgment were rendered in favor of the plaintiff for $3,000. Defendant appeals. Affirmed.F. E. Gill, for appellant.

Argo & Middlekauff, for appellee.

GIVEN, C. J.

1. Second avenue, in the city of Sioux City, is a much traveled street, running south from the business part of the city, and three miles or more from the center of the city is intersected by Peters avenue. From about this intersection, Second avenue passes south through a cut for several hundred feet; the cut being about 18 feet wide at the bottom, about 24 at the top, and about 18 feet deep at the deepest point. The hill being a gradual rise, it was possible to drive up it for some distance on the east side of the cut. On the night of September 22, 1898,--a very dark night,--the plaintiff and his brother and brother-in-law were driving south on Second avenue in a single-seated, one-horse buggy. On reaching the north end of the cut, either of its own accord, or from the control of the plaintiff, who was driving, the horse left the traveled track on the east side thereof; and plaintiff, realizing that they were out of the traveled track, stopped the horse and got out of the buggy to search for the traveled track. He passed round the head of the horse and fell over the bank to the road, some 15 feet below, and was so injured as to necessitate amputation of one of his legs. The charges of negligence against the defendant are as follows: “That the said negligence consists in said city making and permitting to be made a deep cut or excavation within the limits of a much traveled public highway, and for a long time suffering and permitting said cut to be and remain without any fence, guard, railing, or other barricade along the side of said cut and excavation to prevent travelers along said highway from falling or driving into the same, and in not placing, keeping, and maintaining lights or other guards or visible objects at and near said cut to notify and warn travelers using due care of the proximity of said place of danger, and in constructing and maintaining said highway too narrow for safety, and not of sufficient width, and in constructing too narrow an entrance to said cut, and in causing and permitting the said entrance to be and to remain on a level with the surface of the ground adjacent to said cut; * * * and the said city of Sioux City was negligent in not erecting and maintaining a fence, railing, guard, light, or other warning at the entrance to said cut, so as to guide and confine plaintiff and other travelers along said highway in the nighttime into the traveled part of said highway at said point.”

2. One Johnson was permitted to testify, over defendant's objection, that ...