O'Laughlin v. City of Dubuque

• Decision Date: 11 December 1879
• Citation: 52 Iowa 746,3 N.W. 655
• Parties: JOHN O'LAUGHLIN, APPELLEE, v. THE CITY OF DUBUQUE, APPELLANT.
• Court: Iowa Supreme Court

52 Iowa 746

3 N.W. 655

JOHN O'LAUGHLIN, APPELLEE,

v.THE CITY OF DUBUQUE, APPELLANT.

Supreme Court of Iowa.

Filed December 11, 1879.

Appeal from Dubuque circuit court.

This is an action for a personal injury caused by the plaintiff falling upon a sidewalk, which he alleged the defendant negligently allowed to become dangerous to travelers, by reason of an accumulation of snow and ice theron. There was a trial by jury, verdict and judgment for the plaintiff, and defendant appeals.H. T. McNulty, for appellant.

H. B. Fouke, for appellee.

ROTHROCK, J.

This is the second appeal in this cause. 42 Iowa, 539. In the former appeal the evidence showed that the plaintiff, in crossing from one side of Main street to the other, did not cross upon a cross-walk, but went diagonally in a hurried manner, and slipped and fell just as he reached the sidewalk. “There was no evidence tending to show that the cross-walk was in bad condition.” Foraught that appeared it was, at least, perfectly safe, and free from accumulations of snow. We then held that “ordinarily he should have crossed at the place provided for that purpose, but if this was obstructed, or there was not merely appearance of danger, but such as would deter an ordinarily prudent person from crossing on the sidewalk, then he might do so at some other place. Sidewalks and cross-walks alone are constructed for foot passengers, and he who, without some good and sufficient reason, walks elsewhere and is injured, should not be permitted to complain that he has been injured through the fault and negligence of the city.

Counsel for appellant claims that the evidence upon the last trial was the same as on the first. He says: “The plaintiff had before him the opinion of this court given in the former case, and although his interest as well as his inclination prompted him to avoid the objection to his recovery stated in the opinion, a careful reading of his testimony shows plainly that he has not succeeded in avoiding such objections.”

Counsel is mistaken. It appears that the plaintiff was an officer of some court, and that he had a subpœna which he desired to serve on one Smith. His testimony, in part, is as follows: “When I got up to Main street I struck the north-east corner of Main and Seventh streets; I there saw Squire Smith, the witness I was after; he was on the other side of Main street, about half way between Seventh and Eighth streets, when I went to the corner; the reason why I did not...