Palmer v. City of Waterloo

CourtUnited States State Supreme Court of Iowa
Writing for the CourtLADD
Citation115 N.W. 1017,138 Iowa 296
Decision Date13 April 1908


Appeal from District Court, Black Hawk County; A. S. Blair, Judge.

Action for damages resulted in a verdict and judgment against defendant, from which it appeals. Reversed.B. F. Swisher and J. E. Williams, for appellant.

Jesse Gouge and H. B. Boies, for appellee.


Owing to an alleged defect in a sidewalk of the defendant city the plaintiff, on February 24, 1905, slipped and fell, suffering serious injury therefrom. Action was begun May 2d of the same year; the petition describing the location of the occurrence complained of as on “the south side of Franklin street near the corner of said Franklin street and Oak avenue, in front of lot 2, block 5, of the original plat of east Waterloo, the same being located in defendant city.” After nearly all of the evidence on plaintiff's behalf had been introduced plaintiff was permitted to amend her petition (1) by inserting in the description of the locality instead of “the original plat of” the words “Virdens addition to.” Exception is taken to this on the ground that a new cause of action was therein asserted, which had become barred by the statute of limitations. The action was begun within three months after the injury, so that service of notice on the municipality was not essential (section 3447 of the Code), though one with location as stated in the petition was in fact served. The variance in the description was through mistake, for there was no intersection of Franklin street and Oak avenue in the original plat. The lot described, if in that plat, would have been on Sycamore street between Park avenue and Third street. The officers of the city must be assumed to have known this, for it was a matter of public record, and reasonably would have rejected the allusion to the plat and looked for the place near the intersection of the streets designated in the petition. This much is said, not as indicating that such a description in a notice would have been sufficient, for that question is not involved, but as showing that the petition fairly identified the particular place in the walk where the defect was alleged to have existed. The amendment merely made that description more certain, and in no sense can be regarded as stating a new cause of action. Sachra v. Manilla, 120 Iowa, 562, 95 N. W. 198;Thayer v. Smoky Hollow Coal Co., 129 Iowa, 550, 105 N. W. 1024;Gordon v. Railway, 129 Iowa, 747, 106 N. W. 177;Cahill v. Ill. Cen. R. Co. (Iowa) 115 N. W. 216. For collection of cases on this subject, see note to Missouri, K. & T. R. Co. v. Bagley, 65 Kan. 188, 69 Pac. 189, 3 L. R. A. (N. S.) 259.

2. It appeared from the evidence that plaintiff was a married woman and resided at Arlington, some 60 miles from Waterloo. As a part of the amendment mentioned plaintiff alleged that at and prior to the time of the injury she was engaged in a separate and independent business, which yielded her an income of $500 per annum, which she had been incapacitated from following. Counsel for defendant asserted that they had no opportunity to investigate the truthfulness of these allegations or procure evidence bearing thereon, and demanded a continuance of the trial. This was denied, and error is assigned. We cannot say from the record before us that there was any abuse of discretion in the ruling. The amendment merely alleged an additional element of damages of a character which could readily be investigated for all that appears during the course of the trial. The mere fact that plaintiff's home was 60 miles distant, in that age of rapid transportation, did not preclude a proper defense as to this feature of the case. A short postponementof the trial might have been found necessary, but, in the absence of any showing of prejudice, the refusal to continue cannot be held to have been such an abuse of discretion as to constitute reversible error.

3. Exception is taken to that portion of the tenth instruction which authorizes the jury to allow plaintiff such sum as will compensate her for the injuries which she has sustained, including compensation for such pain and suffering as she has endured, and pay for loss of time, nursing, and medical attendance, which are the direct result of her fall, as well as compensation...

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  • Palmer v. City of Waterloo
    • United States
    • United States State Supreme Court of Iowa
    • April 13, 1908
    ...115 N.W. 1017 138 Iowa 296 GEORGIA E. PALMER, Appellee, v. CITY OF WATERLOO, Appellant Supreme Court of Iowa, Des MoinesApril 13, Appeal from Black Hawk District Court.--HON. A. S. BLAIR, Judge. ACTION for damages resulted in a verdict and judgment against defendant, from which it appeals. ......
1 cases

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