Mahoney v. Dankwart
Decision Date | 12 May 1899 |
Parties | MARY MAHONEY, JR., v. E. T. DANKWART, Appellant |
Court | Iowa Supreme Court |
Appeal from Des Moines District Court.--HON. JAMES D. SMYTHE, Judge.
ACTION to recover damages for personal injuries. There was a trial to jury. Verdict and judgment for plaintiff. Defendant appeals.
Reversed.
C. L Poor and La Monte Cowles for appellant.
Hedge & Blythe and Charles Willner for appellee.
Plaintiff with her parents, occupied a dwelling which stood close to the line of a vacant lot adjoining, owned by defendant. Underlying both of these lots was a ledge of limestone, and defendant attempted to remove some of the stone from his lot by blasting. The petition states the cause of action as follows: etc. The answer is a general denial. The court submitted the case upon the theory that defendant had a right to do the blasting. It took from the jury the allegation of malice, and instructed that the charge to be considered was whether defendant was negligent. Complaint is made by appellant of the action of the court in submitting the issue of negligence. It is thought that, if defendant was not guilty of the willful wrongs complained of, he should not be held under the petition upon the other ground. The evidence received was all of such a character as would have been admissible under a charge of negligence alone. We do not find that the point now made was presented to the trial court. At the close of the testimony, appellant's counsel moved the court to direct a verdict in his favor, based upon several grounds, but none of these covered the point we are now considering. Neither was it presented in any of the instructions asked by defendant, nor made one of the grounds for the new trial which was asked.
II. One defense interposed was that the work by which plaintiff claimed to be injured was not done by defendant, but by one Magee, an independent contractor, for whose acts defendant was in no way responsible. The trial court instructed on this theory, and it must be taken as the law of the case. Roberts v. Abstract Co., 63 Iowa 76, 18 N.W. 702. The jury was told that the undisputed evidence established that defendant had a written contract with Magee, by the terms of which the latter was to do the blasting; and the only matter submitted in this connection was whether the work complained of was done under this contract. The jury must have found that it was not, and in this, we think, there was error. Several witnesses testified that Magee had charge of the work after the seventh day of September, and prior to this time it is not claimed that plaintiff suffered any harm from the work. On plaintiff's part the showing is wholly circumstantial, and the circumstances are not inconsistent with defendant's claim. The men employed in the blasting operations had been previously in defendant's service. Defendant was about the work occasionally, but after the seventh of September it does not appear that he assumed or exercised any control over what was being done. This is insufficient to create a conflict of evidence. Sullivan v. Railroad Co., 58 Iowa 602. All of the circumstances upon which plaintiff relies to meet this issue may be readily reconciled with the fact that the work, after the seventh day of September, was done by an independent contractor. See Wheelan v. Railroad Co., 85 Iowa 167. When a fact is not incredible, and is testified to by a witness who is unimpeached and uncontradicted, the jury has no right to arbitrarily disregard the testimony of such witnesses. Lomer v. Meeker, 25 N.Y. 361; Elwood v. Telegraph Co., 45 N.Y. 549.
III. An ordinance of the city of Burlington was introduced in evidence over defendant's objection. It provided that any one blasting within the city limits should cover the orifice in which the explosive was placed with good, sound timber, so as to prevent fragments of rock from being thrown in the air and that any failure in this regard was a misdemeanor. The objection to this evidence is that there is no claim that the damage was caused by a failure to cover the blasts, but, on the contrary, the sole ground of complaint is that the blasts were fired without warning to plaintiff. The petition charges that the blasts were set off in such a negligent manner as to cause "loose fragments of rock to be thrown upon plaintiff's home," to her constant fear. Under the issues, the ordinance appears to have been admissible....
To continue reading
Request your trial