Krisinger v. City of Creston

• Decision Date: 09 February 1909
• Parties: KRISINGER v. CITY OF CRESTON.
• Court: Iowa Supreme Court

141 Iowa 154

119 N.W. 526

KRISINGER

v.CITY OF CRESTON.

Supreme Court of Iowa.

Feb. 9, 1909.

Appeal from District Court, Union County; H. K. Evans, Judge.

Action for damages resulted in judgment against defendant, from which it appeals. Affirmed.L. J. Camp, for appellant.

D. W. Higbee and Thos. L. Maxwell, for appellee.

LADD, J.

In the evening of April 25, 1906, at about 10:30 o'clock, the plaintiff in passing over an apron in the sidewalk stepped in an opening left by a displaced plank, or on a plank, which slipped from under her foot and fell. The trial resulted in judgment against the city, awarding her damages. But three exceptions are interposed: (1) That the city was without notice of the defect in the sidewalk; (2) that an instruction directing the jury to allow plaintiff for medical attendance and medicines was erroneous; and (3) that the assessment of damages was excessive.

There was no evidence that the city had actual notice of the defect in the walk. Ought it, in the exercise of that degree of vigilance exacted from its officers, to have discovered the defect, and repaired the walk prior to the accident? One witness testified that in the latter part of the winter he had “seen one board clear out at times; sometimes it was open and sometimes the boards were close together.” Another testified that: “Prior to the time she got hurt, I had seen the boards kind of raised up. I saw the planks loose quite a little while prior to the time she was injured.” Still another noticed the two boards were loose about a week before plaintiff fell. Surely, in view of the active duty of inspection devolving upon the city's officers, this evidence of the condition of the walk was sufficient to carry the issue to the jury. But it is argued that, as plaintiff had passed over it twice a day during eight months and had not discovered the loose plank, the city ought not to be held to have notice of them. She left her home for the restaurant at 5 in the morning, and ordinarily did not return until 10 o'clock at night. As explained, she could not well have observed defects in the walk save when she returned during the day, which happened occasionally. It may have been light at 5 o'clock in August previous, as contended, but not for all that time. Moreover, the inquiry is not whether she noticed the condition of the walk, but whether it was so noticeable that the city in the charge of its active duty in keeping it in reasonable repair should have discovered the loose planks, and fastened them before the accident. Broburg v. Des Moines, 63 Iowa, 523, 19 N. W. 340, 50 Am. Rep. 756, relied on by appellant, is not in point, for in that case none of those passing along the street several times a day had noticed its dangerous condition, and the court held that the city was not bound to have known what no one else had been able to discover. Here, even though plaintiff had not observed, others, as the jury might have found, had noticed the loose plank in the walk for a considerable time previous, and the issue as to whether defendant ought to have known of and repaired the defect was for the jury.

2. The court instructed the jury to allow plaintiff “such sum for medicines and medical attendance as the preponderance of the evidence shows she has incurred.” Plaintiff participated in conducting a restaurant in the name of her husband and son. She had no independent occupation, but she did employ the physicians and personally agreed to pay them, and...