Jones v. City of Clinton

• Citation: 100 Iowa 333,69 N.W. 418
• Parties: JONES v. CITY OF CLINTON.
• Decision Date: 11 December 1896
• Court: United States State Supreme Court of Iowa

100 Iowa 333

69 N.W. 418

JONES

v.CITY OF CLINTON.

Supreme Court of Iowa.

Dec. 11, 1896.

Appeal from district court, Clinton county; A. J. House, Judge.

Action at law to recover damages alleged to have been sustained by the plaintiff by being thrown out of a buggy while traveling on one of the streets of the defendant city. There was a trial by jury; verdict and judgment for the plaintiff. Defendant appeals. Reversed.C. H. George and McCoy Bros., for appellant.

ROTHROCK, C. J.

The plaintiff and one Jackson, while riding along one of the streets of Clinton in a buggy, drove the horse into an open ditch or trench, and they were thrown out of the vehicle in which they were riding, and the plaintiff claims that she was seriously injured. The action is grounded upon the alleged negligence of the city in not protecting the traveling public from injury by reason of the trench in the street. The accident occurred in the evening, between twilight and dark. There were lights in some of the stores on the street. No lights were necessary to discover the trench in the street. The earth taken from the excavation was deposited in the street. A man on a load of hay, across the street, saw the obstruction, and called aloud to Jackson, warning him of the danger. The trench was dug by the employés of Kendall & Co., plumbers, engaged in plumbing, digging trenches, and repairing water pipes. A service water pipe in the street bursted, and, in order to repair it, the employés of Kendall & Co. made the excavation. One of these employés was examined as a witness in behalf of the plaintiff. The following is part of his testimony: “I don't know the exact date of this accident. I remember of the accident, and it was on the day of that accident that I commenced work, not on the day before. I commenced at one o'clock in the afternoon. I dug up the paving, and was digging the ditch to repair a leak in the service water pipe that ran around across the street to William Kreim's property. The pipe had bursted and rotted out. It had to be repaired, and I dug down to it, and made the repairs. After Tripan went home at about half past five I remained there at work, and completed the work before I went home. After I had got done with it, I hung out a lantern that evening. The pavement has only one layer of brick on top of the sand, and a subfoundation. The brick had been put on top of the sidewalk. I was not right there at the time of the accident. I had just stepped...