Lindsay v. The City of Des Moines

Decision Date18 March 1886
Citation27 N.W. 283,68 Iowa 368
PartiesLINDSAY v. THE CITY OF DES MOINES
CourtIowa Supreme Court

Appeal from Polk Circuit Court.

THIS is an action to recover damages for an alleged injury to the plaintiff which he claims he received by a fall upon a sidewalk, which it is alleged was in a dangerous condition by reason of an accumulation of ice and snow thereon. The claim is that the injury was occasioned by reason of the negligence of the city in not using proper diligence to remove the snow and ice. The answer was a general denial, and contributory negligence on the part of the plaintiff. There was a trial by jury, and a verdict and judgment for the defendant. Plaintiff appeals.

REVERSED.

Henry S. Wilcox, for appellant.

Williamson & Kavanagh, for appellee.

ROTHROCK J. SEEVERS AND REED, JJ., dissenting in part.

OPINION

ROTHROCK, J.

I.

In the instructions given to the jury, after stating the cause of action, in substance, and the defense thereto, the court used this language: "For a more precise and exact statement of the allegations of the parties, and the issues in the case, see the pleadings themselves. * * *" We held in Bryan v. Chicago, R. I. & P. R'y Co., 63 Iowa 464, 19 N.W. 295, that a direction to the jury in this precise language was erroneous. In that case, as in this, the court prefaced the objectionable direction to the jury by quite a full statement of the substance of the averments of the petition and answer. It was held, following quite a number of other cases, that it was error to refer the jury to the pleadings to determine the issues. It is due to the court below to say that this cause was tried before Bryan's Case was decided by this court.

II. As the judgment must be reversed for the error above pointed out, it is proper to say in view of a new trial that we think the court should not have allowed the defendant to prove that there are over 150 miles of sidewalk in the city of Des Moines; and the jury ought not to have been instructed that the "extent of sidewalk in the city which has to be looked after may be considered" in deciding whether the city officers used proper diligence in removing the snow and ice. It appears to us that the care and diligence required to keep sidewalks in proper condition cannot be affected or varied by the number of miles of walk in the city. If labor is necessary for the purpose, the force should be commensurate with...

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