Keyes v. City of Cedar Falls

Decision Date03 February 1899
PartiesKEYES v. CITY OF CEDAR FALLS.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from district court, Blackhawk county; A. S. Blair, Judge.

Action at law to recover damages for injuries sustained by plaintiff resulting from a fall into an excavation in one of the streets in defendant city. Trial to a jury, and verdict for plaintiff for $4,500, which was reduced by the court to the sum of $3,000, and defendant appeals. Affirmed.H. C. Hemenway and O. B. Courtright, for appellant.

Mullen & Pickett, for appellee.

DEEMER, J.

At the time of the happening of the accident in question, plaintiff was a resident of the town of Nashua. He had gone to the city of Cedar Falls on business connected with one of the mills located at that place, and on the 25th day of April, 1892, at about 9 o'clock p. m., while returning from the mill to his hotel, fell into an excavation which had been dug in the street in front of a brick building which was then being constructed, and received the injuries of which he complains. The building was being erected by the firm of Clay & Olbrich, of which firm H. E. Olbrich, a member of the council of defendant city and chairman of the committee on streets and alleys, was a member. The excavation into which plaintiff fell extended into the street from 3 1/2 to 4 feet, was from 3 to 5 feet deep, and from 4 to 5 feet in length. It was dug as an area for a basement window in the new building. Olbrich had ordered it dug, and the workmanengaged for the business commenced his work at about 10 o'clock of the day on which plaintiff was injured, completing his task at about 6 o'clock. The sidewalk extended up to the edge of the excavation, and the hole was left unguarded and without barricades or warning lights. The night of the 25th was dark, and plaintiff had no knowledge of the area way left in the street. While passing along on the way to his hotel, he fell and received his injuries. As soon as he was able, he returned to the mill from whence he started, sat down in a chair, and made the remarks which will be hereinafter referred to. His claim now is that he was seriously and permanently injured by the fall, and that the city is liable because of its failure to barricade or guard the excavation.

1. One of the questions in the case was, of course, the defendant's knowledge or notice of the defect in the street. As Olbrich directed the work to be done, and knew what its character would be when completed, he certainly had both knowledge and notice of the excavation; and ordinarily his knowledge would be the knowledge of the city, because of his relation to it. Carter v. Town of Monticello, 68 Iowa, 178, 26 N. W. 129;Owen v. City of Ft. Dodge (Iowa) 67 N. W. 281;Trapnell v. City of Red Oak Junction, 76 Iowa, 744, 39 N. W. 884. But it is contended that, as Olbrich had no authority from the city to make the excavation, it was to his interest not to convey the knowledge he possessed to the city, and that the presumption of knowledge on the part of the city does not obtain. There are certain cases where notice to an agent will not be imputed to his principal, as where the agent has forgotten, or may have forgotten, during the agency; where he cannot tell his principal because of professional confidence; or where his interests are so adverse to those of his principal that it is certain he will conceal the information. The case of Hummel v. Bank, 75 Iowa, 689, 37 N. W. 954, illustrates one of these exceptions. It is there said: “The notice to the principal of such facts as were known to the agent, and even present in his mind, at the time of the transaction, but the knowledge of which was not acquired in the business of the agency, is constructive. Ordinarily, the circumstances are such as to beget a presumption that the communication was in fact made. But when they are of such character that, according to all human experience and observation, the probability is just the reverse, it would be absurd to indulge that presumption.” In the case before us, Olbrich and the city were equally interested in having the excavation so guarded as that injury would not result; for each was responsible for all damages that might result, and there is every reason to suppose that an agent so interested would convey his knowledge to his principal. But it is argued that, as Clay & Olbrich had no permission to make the excavation, they became trespassers, and that it was to Olbrich's interest to keep from the city notice of the fact that he had dug the area for his window. It does not appear from the evidence that defendant required building permits or licenses to be issued to those who would build up to the street lines, and, in the absence of such requirements, builders had the right to temporarily use a reasonable portion of the street for building material and in excavating for foundations and cellars. O'Linda v. Lothrop, 21 Pick. 297;Clark v. Fry, 72 Am. Dec. 590. Areas for light, and basement windows and descents, are necessary, in order to carry on business in a city, and, if such excavations are properly guarded or covered after completion, they do not, in themselves, constitute a nuisance. 2 Dill. Mun. Corp. (4th Ed.) § 656b. It may be that, as the city has full control over its streets (Code 1873, § 561), it may and should specify the conditions under which such excavations may be made; and it is likely true that, if one makes an excavation in a street without permission, he is liable for all damages done. Davis v. City of Clinton, 50 Iowa, 585. But in this case it appears that the city knew that Clay & Olbrich were occupying the street, and making excavations for their building, and they entered no protest against it. There is no evidence whatever that either Clay or Olbrich was attempting to gain any advantage of, or to perpetrate any fraud upon, the city; and there is no reason for supposing that concealment of the fact that they were making the excavation would have been to their advantage. Such a hole in the surface of the street would be apparent to the most casual observer, and there could have been no thought of concealment in the mind of Olbrich when he ordered the work done. None of the exceptions to the general rule that notice to the agent is notice to the principal obtain, and the trial court correctly instructed that notice to Olbrich was notice to the city.

2. Appellant insists that plaintiff was guilty of such negligence contributory to his injury as that he ought not to recover, and it says in argument that plaintiff had no right to go where it was so dark he could not see what he was doing; citing Perry v. City of Cedar Falls, 87 Iowa, 315, 54 N. W. 225. The instruction given in that case which contains the language relied upon by appellant was not approved, and it is so opposed to the tenor of authority that we do not think it ever will be. The rule is well settled that a person has the right to rely upon the assumption that the city has done its duty, and that it is not negligence for one to pass over a sidewalk at night. He is not bound to carry a light with him to see that there are no pitfalls in the walks he contemplates using. Streets and sidewalks are designed for use at all hours of the day or night, and it is not negligence for one to venture out after dark. Improvement Co. v. Loehr (Ind. Sup.) 24 N. E. 579;Barnes v. Town of Marcus, 96 Iowa, 682, 65 N. W. 984;Robinson v. City of Cedar Rapids (Iowa) 69 N. W. 1064;Moore v. City of Burlington, 49 Iowa, 136;Ross v. City of Davenport, 66 Iowa, 551, 24 N. W. 47.

3. The instructions with reference to the negligence of the city are complained of because they did not refer to an electric light which was within a block and a half of the scene of the accident. It is doubtful, to say the least, whether this light was burning at the time plaintiff received his fall; but, be that as it may, it was not error to omit to refer to it in the instructions. The negligence charged was failure to erect or place any barrier, sign, or signal at the scene of the accident, to notify the public of its dangerous condition. The court fully instructed as to this claim, and it was not error, in the absence of proper request, to omit references to the electric light. The jury had the right, under the instructions given, to consider the presence or absence of the street light.

4. Evidence was offered tending to show that plaintiff did not observe the directions of his physician called after he received his injuries, and the defendant asked an instruction to the effect that plaintiff could not recover for any damage accruing after his failure to comply with these directions. This instruction was refused, but the court instructed that such fact, if proven, was proper to be considered, and that no damages should be allowed plaintiff for any impairment of health or physical condition occasioned by his neglect to observe such directions. The instruction given announced the correct doctrine, and the one asked was properly refused. Beach, Contrib. Neg. § 59; City of Goshen v. England (Ind. Sup.) 21 N. E. 977;Stebbins v. Railroad Co., 54 Vt. 464. The pivotal point in determining whether there is contributory negligence is not whether plaintiff contributed to the amount of the injury, but to the occurrence. If to the amount, then his negligence is treated as aggravating the damage, not as causing it.

5. The mortality tables were offered in evidence, and it is claimed that the court below erred in saying to the jury that such tables were of importance in enabling them to determine the amount of plaintiff's damages, provided they found he was permanently injured. We have frequently held that such evidence is admissible in cases where the injured party is permanently disabled. Knapp v. Railway Co., 71 Iowa, 41, 32 N. W. 18;Chase v. Railway Co., 76 Iowa, 675, 39 N. W. 196;Allen v. Railway Co. (Iowa) 76 N. W. 848. The very purpose of such evidence is...

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