McGinty v. City of Keokuk

• Decision Date: 24 September 1885
• Citation: 24 N.W. 506,66 Iowa 725
• Parties: MCGINTY v. CITY OF KEOKUK.
• Court: Iowa Supreme Court

66 Iowa 725

24 N.W. 506

MCGINTY

v.CITY OF KEOKUK.¹

Supreme Court of Iowa.

Filed September 24, 1885.

Appeal from Lee district court.

Action to recover for personal injuries sustained by plaintiff from a fall, caused by her slipping into a hole in a sidewalk over which she was passing at the time. There was a verdict for plaintiff, and judgment thereon. Defendant appeals.W. T. Rankin and McCrary & Hagerman, for appellant, City of Keokuk.

Miller & Son, for appellee, Elizabeth McGinty.

BECK, C. J.

1. Challenges to certain jurors on the ground that they were tax-payers of the city were sustained. This ruling was complained of, defendant insisting that it was not made to appear that the jurors paid city taxes. We think that the plain meaning of the responses of the jurors to questions asked them touching their qualifications is to the effect that they paid city taxes. Doubtless the district court so understood their responses, and no effort was made on the part of counsel for defendant to show that the jurors did not pay city taxes.

2. The jury were directed by the court to take with them, upon retiring to consider of their verdict, the pleadings in the case. This is made the foundation of an objection. As the jury were correctly instructed as to the issues in the case, and no grounds for the objection appears, we do not think the record shows the court's action in this regard to be erroneous and prejudicial.

3. The verdict returned by the jury was the form given them by the court in its instruction, filled up with the amount found for plaintiff, and signed by their foreman. The record shows that the jury was polled, and each answered that the verdict was his. It is insisted that the verdict does not comply with the law, in that it was not written out by one of the jury. We see no force in this objection. The jury were authorized to adopt the writing of the judge, and the signature of their foreman, with their assent, made it their verdict. And if it be conceded that the form of the verdict was irregular, the response of each juror upon being polled, assenting to it, cured the irregularity.

4. The defendant requested the court to give an instruction in the following language, which was refused: “(9) If you find from the evidence that the plaintiff, at the time that she passed over the walk, well knew that the walk was unsafe, and that it was imprudent to do so at that time in consequence of darkness or for any other cause, and with this knowledge she still persisted in passing over it, though there was another walk which she might have taken in going in the direction which she desired to go, then her own negligence contributed to the injury, and she cannot recover. This precise instruction was approved by a majority of the court in Parkhill v. Town of Brighton, 61 Iowa, 103;S. C. 15 N. W. Rep. 853. But counsel for plaintiff insist that as there was no evidence to which the instruction was applicable, in that there was no proof tending to show that there was another route of safety which plaintiff could have taken, it was not error to refuse it. We do not concur in this statement of fact. We think the abstract does contain evidence tending to show that there was another sidewalk and path, used by persons going in the direction plaintiff was walking, which was not dangerous from want of repairs. We think the court erred in refusing the instructions.

5. The eleventh instruction, given on the court's own motion, is not clear, and may be regarded as contradictory in its language. It is also erroneous in holding that knowledge of the defect in the walk which caused plaintiff to fall, would defeat recovery by her. But this error was against plaintiff. It is insisted by defendant that as the evidence shows plaintiff did know of the defect, the verdict was against the instruction. It is unnecessary to determine this point, as the error in the instruction, and its defects on account of want of clearness, and for conflict in its language, will be noticed and corrected upon another trial. Other objections to the judgment need not be considered.

For the error above pointed out the judgment of the district court is reversed.

NOTE.

Municipal Corporations--Defects in Streets and Sidewalks.

A municipal corporation which has charge of the streets and sidewalks, and power to compel repairs to the same by assessment, is bound to keep them in good repair and safe condition, and is liable in damages to any person who, without fault or negligence, is injured by reason of any defects in same, when the authorities of the city knew, or had notice, actual or constructive, of the existence of such defect or defects. Delger v. City of St. Paul, 14 Fed. Rep. 567; James v. City of Portage, 5 N. W. Rep. 31;Garlick v. City of Pella, 6 N. W. Rep. 3; Estelle v. Village of Lake Crystal, Id. 775; Munger v. City of Marshalltown, 13 N. W. Rep. 642.

1. APPROACHES. A city is not bound to provide a safe way or any way by which sidewalks may be entered from private property. Goodwin v. City of Des Moines, 7 N. W. Rep. 411.

2. CONTRIBUTORY NEGLIGENCE. Failure to use ordinary care, where it contributes materially to the injury, will defeat a recovery. Cronin v. Village of Delavan, 7 N. W. Rep. 249. Where the injured party knew the sidewalk was out of repair, it was not contributory negligence to go upon it, and a recovery may be had where ordinary care was used to avoid injury. Delger v. City of St. Paul, 14 Fed. Rep. 567; Munger v. City of Marshalltown, 13 N. W. Rep. 642; Bullock v. City of New York, 2 N. E. Rep. 1; but see Parkhill v. Town of Brighton, 15 N. W. Rep. 853. It is not negligence, even in a drunken man, to go upon a defective sidewalk; he is entitled to one that is safe. Hubbard v. Incorporated Town of Mason City, 20 N. W. Rep. 172.

3. DAMAGES. Bodily and mental suffering are elements of damage. Sheel v. City of Appleton, 5 N. W. Rep. 27. Medical attendance is not, where there is no evidence tending to show expense incurred. Stafford v. City of Oskaloosa, 11 N. W. Rep. 668. Where the party injured is a married woman, and brings suit in her own name, she will not be entitled to recover for loss of time, where evidence does not show that she carries on a separate business. Thomas v. Town of Brooklyn, 10 N. W. Rep. 849.

4. GUARDS. When it is the duty of city to provide guards or rails. See Estelle v. Village of Lake Crystal, 6 N. W. Rep. 775;Cronin v. Village of Delavan, 7 N. W. Rep. 249; Fitzgerald v. City of Berlin, Id. 836.

5. ICE AND SNOW. Permitting ice and snow to accumulate upon sidewalks renders city liable only when they are thereby rendered dangerous with the exercise of greatest care. Broburg v. City of Des Moines, 19 N. W. Rep. 340. Not liable for injuries from fall caused by ridge of ice on crossing produced by trampling of melting snow and freezing. McKellar v. City of Detroit, 23 N. W. Rep. 621.

6. NOTICE, ACTUAL AND CONSTRUCTIVE. It is for the jury to determine, under all the circumstances of the case, how long the defect must have existed in order to charge the city with constructive notice. Sheel v. City of Appleton, 5 N. W. Rep. 27. As to what degree of notoriety necessary, see Thomas v. Town of Brooklyn, 10 N. W. Rep. 849. Defect of three weeks' standing held sufficient in Sullivan v. City of Oshkosh, 13 N. W. Rep. 468. Proof of existence for one day not sufficient to fix...