Parkhill v. Town of Brighton

• Decision Date: 06 June 1883
• Parties: PARKHILL v. TOWN OF BRIGHTON.
• Court: Iowa Supreme Court

61 Iowa 103

15 N.W. 853

PARKHILL

v.TOWN OF BRIGHTON.

Supreme Court of Iowa.

Filed June 6, 1883.

Appeal from Washington district court.

Action for injuries alleged to have been sustained by reason of a defective sidewalk. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff for $5,000. The defendant appeals.Dewey & Templin, McJunkin & Henderson, and H. & W. Scofield, for appellant.

Ed. W. Stone and A. H. Patterson & Sons, for appellee.

ADAMS, J.

1. The appellee insists that the appeal was not taken within six months from the rendition of the judgment. The fact appears to be that the judgment was rendered the thirtieth day of March, and the appeal was taken on the thirtieth day of September following. The theory that the time between the two dates is more than six months, rests upon the fact that March has 31 days. Strictly considered, it must be admitted that the time included one day of March, and the full six calendar months following. But it is generally understood that calendar months are to be computed by reckoning from a given day to a day of the corresponding number where there is one. No one could doubt that from the twenty-ninth day of March to the twenty-ninth day of September is precisely six calender months. Yet such time is of precisely the same length as from the thirtieth day of March to the thirtieth day of September. The rule of reckoning from a given day to a day of the corresponding number, is one so easily understood and applied that we do not think that we should be justified in adopting any other. The rule we adopt seems to be that of the commercial law. Ammidown v. Woodman, 31 Me. 580. We think that the appeal was taken within the proper time.

2. The fact respecting the alleged accident appears to be that in September, 1879, about 8 o'clock in the evening, the plaintiff and her sister were walking upon the sidewalk in question, when the plaintiff stepped upon a loose board or plank and fell. The plaintiff and her sister both so testified, and we do not find that they are contradicted. Notwithstanding this fact, the evidence respecting the condition of the walk was allowed to take a very wide scope. The plaintiff was allowed to introduce evidence which, we think, must have been introduced mainly with the view of prejudicing the jury against the defendant. She showed that in the spring of 1880, six or seven months after the alleged accident, the walk was deemed by the town to need repairing. One Blackwood was introduced as a witness, who, after having testified that he was acquainted with the walk in 1878 and 1879, and that it was not very good; that it had some holes in it and some loose boards,--was asked a question in these words: “What was its condition in the spring of 1880, just before repaired?” To this he answered, against the objection of the defendant, that it was about the same thing. Other evidence of a similar character was admitted, against the objection of the defendant. As touching this evidence, and for the purpose of limiting it in its application, the court instructed the jury in these words: “Evidence was admitted on the trial showing the original construction of the walk and its condition, both before and after the time the injury is claimed to have been sustained; also, that it was found necessary soon thereafter to reconstruct the walk; but this is only admitted as tending to show what was its actual condition at the precise time when the plaintiff claims to have been injured thereon, and it is for you to determine its weight on this point.” The defendant assigns error both upon the admission of the evidence and the giving of the instruction.

The court very correctly appreciated that the evidence of the condition of the walk in the spring of 1880 was not admissible for the purpose of showing the general negligent character of the defendant as rendering it a proper subject of punishment. It undertook to apply the evidence to a proper object, and to prevent the jury from making any other application. It often happens that evidence is admissible for one purpose and no other, and is of such a character that there is danger that it will not be restricted in its application to its legitimate object. When this is so it cannot be excluded. The most that the party can require against whom it is admitted, is that the jury shall be properly cautioned.

We come, then, to the question as to whether the evidence respecting the repairs in the spring of 1880, and the condition of the walk immediately prior, was admissible, even for the purpose for which the court held that it was. It is not to be denied, we think, that the defective condition of a sidewalk at the time of an alleged accident may sometimes be shown by showing its condition at a subsequent time. A sidewalk shown to be badly decayed on a given day, could hardly be supposed to be sound the day or week previous. There are other defects which might be of...