Kelleher v. City of Keokuk

• Decision Date: 22 March 1883
• Citation: 15 N.W. 280,60 Iowa 473
• Parties: KELLEHER v. CITY OF KEOKUK
• Court: Iowa Supreme Court

15 N.W. 280

60 Iowa 473

KELLEHER v. CITY OF KEOKUK

Supreme Court of Iowa, Council Bluffs

March 22, 1883

Appeal from Lee Circuit Court.

ACTION at law to recover damages for personal injuries resulting from a fall upon the sidewalk of the city, caused by its defective condition. There was a judgment upon a verdict for defendant. Plaintiff appeals.

AFFIRMED.

Miller & Son, for appellant.

J. H Dryden, for appellee.

OPINION

BECK, J.

I.

The objections to the judgment, raised by the assignment of errors and urged in argument, relate to rulings of the Circuit Court in admitting and excluding evidence, and in giving certain instructions to the jury. We will consider these objections in the order of their presentation in the assignment of errors.

II. An affidavit filed in support of a motion for a continuance made by defendant, on account of the absence of a witness, alleged that defendant expected to prove by the witness that the sidewalk upon which plaintiff fell was at the time in "good repair." In order to avoid the continuance plaintiff admitted that the witness, if present, would testify as stated in the affidavit, but denied the competency of the evidence, and objected thereto upon the ground that the statement of the witness as to the condition of the sidewalk was an expression of opinion, and it was not shown by the affidavit, or otherwise, that the witness was competent as an expert to state an opinion in regard to the condition of the sidewalk. We think the statement of the affidavit to the effect that the sidewalk was in "good repair" is not the expression of an opinion, but of a fact discovered by the observation of the witness. Any person of ordinary intelligence is capable of observing the condition of a street or sidewalk, whether it be in good repair or bad condition. All persons living in or who frequent cities continually use the streets, and in passing along a sidewalk would ordinarily observe its condition. The testimony in question belongs to that class which relates to experience and observation as to affairs of every day life, to which the attention of all are directed, and of which all are competent to speak. A witness, without a showing of his qualifications as an expert, may state conditions of the weather, the time of the day, the comparative distance which separates objects, the condition of the roads and streets, and the like, for the reason that matters of this kind are within the observation of all, and in speaking of them he does not express an opinion, but states facts learned from observation.

III. The next objection urged by counsel is based upon the exclusion of evidence, as shown by the following extract from the record before us: "Plaintiff offered the evidence of one Thompson, a carpenter and sidewalk builder, who testified he laid the sidewalk for defendant, where plaintiff fell, in 1868, and knew how long stringers under such sidewalks would remain, so as to hold nails, after construction; and plaintiff then asked him how long a stringer, as referred to, would remain before becoming rotten and becoming incapable of holding nails. Defendant objected, and the court sustained the objection and refused to let witness answer." It is not shown what fact plaintiff expected to elicit from an answer to the question, nor what response the witness would have made thereto. We cannot presume that the witness would have given evidence beneficial to plaintiff, and that she was prejudiced by the refusal of the court to permit the witness to answer the question. Error and prejudice to plaintiff should be affirmatively shown, to authorize us to reverse the judgment on the ground of this or any other ruling of the court. See Jenks v. Knotts Mexican Silver Mining Co., 58 Iowa 549, 12 N.W. 588.

IV. The court in three instructions (the 5th, 6th and 11th) directed the jury, in effect, that if the defect in the sidewalk was "open and notorious," the city is chargeable with notice thereof. To these instructions counsel for plaintiff object, on the ground that the use of the word "open" is...