Langhammer v. City of Manchester
| Decision Date | 17 October 1896 |
| Citation | 68 N.W. 688,99 Iowa 295 |
| Parties | THERESA LANGHAMMER, Appellant, v. THE CITY OF MANCHESTER |
| Court | Iowa Supreme Court |
Appeal from Delaware District Court.--HON. A. S. BLAIR, Judge.
THIS is an action brought by the plaintiff to recover damages resulting from an injury to her person, caused by a fall, as she alleges, upon a stone step leading from the sidewalk on Franklin street to the walk crossing said street in the defendant city. The negligence charged is, First, in permitting snow and ice to accumulate upon said step, and to remain there in an uneven, rounded, slippery, and dangerous condition; and, Second, that the walk was improperly constructed, in that it inclined towards the west at said point, so that ice and snow melting thereon would run down and freeze upon said step, and that the step had settled on one side, so that it inclined to the east. While plaintiff on said day, and in the exercise of due care, was attempting to descend said steps, and without knowledge of their dangerous condition, she fell, and sustained serious and permanent injuries. Damages are asked in the sum of five thousand dollars. The defendant admits its corporate capacity, and denies all other allegations of the petition and amendment thereto. The cause was tried to the court and a jury, and a verdict returned for defendant. Plaintiff appeals.--Reversed.
Motion Overruled. Judgment REVERSED.
A. A House and Yoran & Arnold for appellant.
Bronson & Carr and Dunham & Norris for appellee.
I.
This record contains one hundred and seventy-two assignments of error, of which about fifty are argued. It cannot be expected that we shall separately consider every error argued. In response to a question as to how carefully he had observed the step, a witness answered: "I observed in particular that this step was secure." A motion was made to strike this answer, because it was a conclusion of the witness. There was no ruling on this motion, and none appears to have been insisted upon by counsel; hence the error, if any, in admitting the evidence was waived. Gable v Hainer, 83 Iowa 457 (49 N.W. 1024); Payne v Dicus, 88 Iowa 423 (55 N.W. 483); Rosenthal v. Bilger, 86 Iowa 246 (53 N.W. 255). Furthermore, in the course of his examination, this witness fully described the condition of the step, and no prejudice could have resulted from the ruling.
II. Complaint is made of the rulings of the court upon certain so-called "hypothetical questions" asked physicians. We do not discover any error in these rulings. Under the rule laid down in the following cases, the questions were not objectionable: In re Norman's Will, 72 Iowa 84 (33 N.W. 374); Meeker v. Meeker, 74 Iowa 352 (37 N.W. 773); Bever v. Spangler, 93 Iowa 576 (61 N.W. 1072).
III. Error is assigned upon the ruling of the court in excluding an answer to the following question as leading: "State whether or not it sloped or inclined in any, and what, direction." As the question was afterwards asked the same witness, and answered, without objection, the ruling was without prejudice, in any event.
IV. Plaintiff attempted to show by several witnesses, that prior to the time of the accident in question, they had slipped or fallen at, or on, this same step, or had seen others do so. This evidence was excluded, of which ruling appellant now complains. Counsel cite no case decided by this court which would justify the admission of such evidence. Whatever may be the rule in other jurisdictions, it is well settled in this state, that in such a case evidence of similar disconnected acts is not admissible. Hudson v. Railway Co., 59 Iowa 581 (13 N.W. 735); Mathews v. City of Cedar Rapids, 80 Iowa 459 (45 N.W. 894; Croddy v. Railway Co., 91 Iowa 598 (60 N.W. 214).
V. Witness Atkinson, after testifying, that during the first sixteen days in December he had passed up and down over these steps at least three times a day, was asked: "Now, state if, at any of the times you passed up and down those steps you observed anything on the steps that would tend to render them in a bad condition." He answered: "That there was nothing on them." Another witness, after disclosing a like use of the steps, was asked: "During these four times that you went up and down these steps, for the first sixteen days of December, 1893, Sundays excepted, what, if anything, did you observed on these steps that would make it dangerous to fall or otherwise?" He answered: "I never observed anything dangerous on them." Both questions were objected to, as calling for the conclusion of the witness. It will be observed that these questions are not directed to the condition of the steps, as to whether they were in good repair, as to being sloping or slanting, but the questions are evidently directed to the condition of the steps, as to what was on them, as to snow or ice. If it had been attempted to show, in a general way, that the steps were in "good repair," the evidence might have been admissible, under the holding in Kelleher v. City of Keokuk, 60 Iowa 473 (15 N.W. 280). It seems to us, however, that these questions, in effect, asked the witness whether or not, from his observation, there was such an accumulation of snow and ice on the steps as to render them dangerous. They were properly objected to, as calling for a conclusion. It is said that this evidence was introduced to prove a negative, viz., that "nothing dangerous or in the nature of an obstruction was, at the time inquired about, upon the steps in question." This is not a case like Manufacturing Co. v. Gates, 61 Minn. 124 (63 N.W. 260), and other way. Nor does it come within the rule laid down in Yahn v. City of Ottumwa, 60 Iowa 429 (15 N.W. 257), and relied upon by appellee. There is nothing in the nature of the facts surrounding this accident and the condition of these steps which prevents their being fully detailed to the jury by the witnesses. The actual condition of the steps at the time these witnesses passed over them, could have been as easily put before the jury as any fact. The evidence, then, should have been directed to the facts, as to the condition of the steps, leaving the jury to determine whether or not such condition as was described by the witnesses would have rendered the steps dangerous to those passing over them. This was one of the material questions in the case, and it appears to us that to permit the witnesses to testify that these steps were not dangerous, which is, in effect, what was done, was invading the province of the jury. It must be admitted that it is often a difficult question to determine when a witnesses is testifying to a fact and when to a conclusion, but we think these questions called for a conclusion, and were therefore improper. As bearing upon this question, see Barnes v. Incorporated Town of Newton, 46 Iowa 567; Houston v. Brush (Vt.) (66 Vt. 331, 29 A. 380)...
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