Nichols v. Inc. Town of Laurens

• Decision Date: 13 December 1895
• Citation: 96 Iowa 388,65 N.W. 335
• Parties: NICHOLS v. INCORPORATED TOWN OF LAURENS.
• Court: Iowa Supreme Court

96 Iowa 388

65 N.W. 335

NICHOLS

v.INCORPORATED TOWN OF LAURENS.

Supreme Court of Iowa.

Dec. 13, 1895.

Appeal from district court, Pocahontas county; Lot Thomas, Judge.

Action at law to recover damages for a personal injury. From a judgment on a verdict for the plaintiff, the defendant appeals.R. M. Wright, for appellant.

Helsell & Gilchrist, for appellee.

ROTHROCK, J.

1. On the 4th day of January, 1894, the plaintiff was engaged in the general merchandise business in the incorporated town of Laurens. On the evening of that day, while walking along a street crossing in said town, he fell, and dislocated one of his ankles, and broke one of the bones in his leg below the knee. He brought this action against the town to recover damages for the injury, and claimed the right to recover on the ground that his injury occurred by reason of a defect in the street crossing. The injury was received while going from his place of business to his residence. His store was located on a corner on the west side of Third street. His residence was on the east side of said street, and about two blocks south of his store. At about equal distances from his house and place of business, there was a cross street known as “Olive Street.” On one corner on the north side of the cross street there was a church building fronting on Third street, and immediately across Third street there was another church fronting on the same street. The street crossing, where the injury was received, was laid across Third street from one of the church lots to the other. The crossing was quite generally used. There was a street crossing from the plaintiff's store across to the east side of Third street which was in good repair, and there was a sidewalk from the east end of that crossing along the east side of Third street, down to Olive street; so that the plaintiff, in going from his home to his place of business, had two routes very nearly equal in distance. The distance by the east side of the street was a few steps further, because the store door was not quite opposite to the cross walk. At the time the injury was received, the plaintiff went down the west sidewalk, and at the church on the corner he turned to the east, and received the injury while crossing to the side of the street where his home was situated. This was nearly a block north of his home. There is no real dispute that there was a defect in the crossing. It was about three feet wide, constructed of boards 2 inches thick. The boards were 12 inches wide. Some time before the injury, about 8 feet of the middle board was broken and removed, so that at that point, and at about the middle of the broken space, there was a hole or depression between the two outside boards, variously estimated, by the witnesses in the case, as from 2 to 12 inches in depth. The accident occurred after nightfall, and there was a strong wind from the north, and some snow falling. The streets, sidewalks, and crossings were smooth on account of ice, and there had been ice on the crossing at the church corners for some time. There is no doubt that the jury were fully warranted in finding that the authorities of the town were negligent in permitting the hole in the crossing to remain open, and that it was a sufficient defect to authorize a recovery against the town for an injury received by any one, unless the person injured by his own negligence contributed to produce the injury. And we have given a particular statement of the location of the plaintiff's place of business and his home, because the principal question in the case is whether the defendant has any right to recover by reason of his knowledge of the defect in the crossing, and the claim by defendant that he should have crossed from his store to the east side of the street, and avoided the defective crossing. In other words, the real question in the case is whether the plaintiff's own negligence contributed to his injury. And the only question of negligence to be considered relates to the defect by reason of the broken boards. The court rightly instructed the jury that there was no evidence of any negligence of the defendant in permitting the ice or snow to accumulate and remain on the crossing.

2. The plaintiff moved into the house on the east side of the street in November previous to the accident. From that time he passed daily from his home to his store, to and from his meals, until the time of the accident. Sometimes he traveled one side of the street, and sometimes the other. He knew that part of the middle board of the crossing had been broken and removed. He had examined the defect made by its removal. His wife fell at that place some days before he was injured, and he then examined the defect. These and other undisputed facts disclosed in evidence show without question that he knew of the defect and its extent. It does not appear that any one was at any time injured by reason of the defect until the plaintiff received his injury. We cannot recite the testimony of the witnesses examined on the trial. There is much in the evidence as to the velocity of the wind on that evening, and as to whether the night was dark, or whether it was light, so that plaintiff could see the defect. But there is little doubt that the plaintiff intended to cross just where he did. It is contended with great vigor on the part of appellant that the evidence of contributory negligence is so...