Montgomery v. City of Des Moines

• Decision Date: 10 December 1880
• Citation: 7 N.W. 421,55 Iowa 101
• Parties: MONTGOMERY v. CITY OF DES MOINES.
• Court: Iowa Supreme Court

55 Iowa 101

7 N.W. 421

MONTGOMERY

v.CITY OF DES MOINES.

Supreme Court of Iowa.

Filed December 10, 1880.

Appeal from Warren circuit court.

This action was commenced in the Polk circuit court to recover for injuries claimed to have been sustained through a defective sidewalk on a street of the defendant. The venue was changed to the Warren circuit court.

The cause was tried to a jury, and a verdict was returned for the plaintiff for $5,500. The motion for a new trial was overruled, and judgment was entered upon the verdict. The defendant appeals.Miller & Godfrey and Seevers & Sampson, for appellant.

G. W. Field and B. A. Williams, for appellee.

DAY, J.

1. The court instructed the jury as follows:

“(1.) If is the duty of the city of Des Moines to keep such streets and sidewalks as are constructed in the same for the convenience of passers and foot travelers open and in repairs, and free from nuisance; and if the evidence satisfies the jury that the sidewalk, as alleged in the petition of plaintiff, was out of repair, or improperly constructed, and in such condition as to render passers over the same liable to fall or otherwise get injured, and that in consequence thereof the plaintiff, in passing over the same, was injured, without negligence or fault on her part which contributed to the injury complained of, then the jury will find for the plaintiff; but, if you fail to so find, then you will find for the defendant.

(2.) If the jury find from the evidence that the injury complained of was suffered, and that it was occasioned by a fall upon the sidewalk, as charged in the petition of plaintiff, and that the sidewalk, in the place where the fall occurred, was in an unsafe and dangerous condition for the passage of travelers on foot, and that the accident occurred in consequence of such unsafe condition of the sidewalk, and that the plaintiff could not have known and guarded against the damages by the use of ordinary care and prudence, then the jury will find for the plaintiff, if they find that the negligence of the plaintiff did not contribute to the injury.

(3.) If the jury find from the evidence that the plaintiff was injured by the defective sidewalk in the street of the defendant, without negligence on her part, it is not necessary, in order to entitle the plaintiff to recover, that she should prove actual notice of the defect to the city, if the same was the result of the construction by the defendant, or if the defect was...