Owen v. City of Ft. Dodge

• Citation: 98 Iowa 281,67 N.W. 281
• Parties: OWEN v. CITY OF FT. DODGE.
• Decision Date: 16 May 1896
• Court: United States State Supreme Court of Iowa

98 Iowa 281

67 N.W. 281

OWEN

v.CITY OF FT. DODGE.

Supreme Court of Iowa.

May 16, 1896.

Appeal from district court, Webster county; S. M. Weaver, Judge.

Action at law to recover damages for personal injuries received by plaintiff by reason of a defective sidewalk or crossing in the defendant city. There was a trial to a jury, verdict and judgment for plaintiff, and defendant appeals. Affirmed.Blake & Mitchell and Botsford, Healy & Healy, for appellant.

Yeoman & Kenyon, for appellee.

DEEMER, J.

On the evening of the 14th day of October, 1892, the plaintiff, while attempting to pass over a plank street crossing in the defendant city, stepped between the boards there laid, and received the injuries of which she complains. She alleged that the crossing on which she was injured was at the corner of Cass and Locust streets, being the southeast corner of block 11 in Morrison and Duncombe's addition to the city, at the southwest corner of Cass at its intersection with Locust street, and on the north side of Locust street; that the crossing, as originally constructed, was defective, in that an open space of about one foot was left between the planks, which were laid lengthwise across a ditch or gutter in the street; and that the crossing had remained in this defective condition, with the knowledge and consent of the city authorities, for more than four months prior to the accident. She also averred that she was free from negligence contributing to her injury, and she asked judgment for $9,000. The defendant, for answer, denied all allegations of the petition, and further pleaded as an affirmative defense that the accident happened at the southwest corner of block 11, and on the north side of Locust street, and at the northwest corner of the intersection of Cass and Locust streets in the city of Ft. Dodge; and that no notice, such as required by section 1, c. 25, Acts 22d Gen. Assem., has been served upon the defendant. The case was tried to a jury, which returned a verdict for plaintiff in the sum of $2,000, upon which judgment was rendered, and this appeal followed.

1. The first matter called in question by appellant's counsel relates to the sufficiency of the preliminary notice given by plaintiff. The statute referred to by defendant in its answer is as follows: “In all cases of personal injury resulting from defective streets or sidewalks, or from any cause originating in the neglect or failure of any municipal corporation or its officers to perform their duty in constructing or maintaining streets or sidewalks, no suit shall be brought against the corporation after six months from the time of the injury unless written notice specifying the place and circumstances of the injury shall have been served upon such municipal corporation within ninety days after the injury.” This action was commenced more than six months after the injury, and plaintiff served a notice upon the defendant, in which she stated that she received her injuries “while walking along the sidewalk on the west side of Cass street and attempting to cross Locust at the southwest corner of Cass at its intersection with Locust.” Now, it appears that Locust street runs east and west, and Cass north and south, through Morrison and Duncombe's addition to the defendant city; that blocks 4 and 11 are immediately north of Locust, and 12 and 3 south of it, and that blocks 3 and 4 are immediately east of Cass, and 11 and 12 are immediately west The following plat will explain the situation:

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The appellant contends first that the notice locates the place a block away from where the injury occurred, and also insists that plaintiff claims the spot to be at three different places, to wit, the southeast corner of block 11, northwest corner of Cass and Locust streets, and the southwest corner of Cass and Locust streets. With reference to the first contention, it appears from a plat attached to defendant's abstract that the southeast corner of block 11 is at the intersection of Cass and Walnut streets, but appellee has filed an amended abstract, from which it appears that this is an error, and that the corner is at the intersection of Cass and Locust. This amended abstract is not denied, and we accept the statements therein made and the plats attached as true. We also find, after a close examination of the record, that the plaintiff has not at any time contended or charged that the accident occurred at the northwest corner of Cass and Locust streets. The only question which remains, then, is, is the notice which says that the accident occurred “while plaintiff was passing along the sidewalk on the west side of Cass street, and as she attempted to cross Locust at the southwest corner of Cass street at its intersection with Locust,” sufficient? It will be observed that the statement is not that the accident happened at the southwest corner of the intersection of Cass and Locust streets, which would undoubtedly mean a point at the northeast corner of block 12, but the southwest corner of Cass street at its intersection with Locust, which might mean the northeast corner of block 12, but might also properly be used in referring to the southeast corner of block 11. It is well known, however, that it is very difficult, in our ordinary speaking, to locate a street corner by using the points of the compass. When one refers to the northwest corner of a certain street intersection, he is frequently understood as referring to the northwest corner of the block south and east of the crossing, but more often, of course, to the southeast corner of the block, north and west from the intersection. But when he speaks of the southeast corner of a certain street at its intersection with another, he may refer to the northeast corner of the block lying south and west from the crossing; although one would probably be justified in inferring that reference was made to the southeast corner of the block lying northwest from the street crossing. In this particular case, however, the notice further points out the place by saying “that there was a defect in the crossing at said point by the plank being placed so far apart, or from some other defect to this subscriber unknown, that she stepped through the said plank, or said plank gave way under her, in whole or in part, inflicting the injuries complained of.” Now, it seems to be undisputed that ...