Ruggles v. Town of Nevada

• Decision Date: 09 April 1884
• Citation: 18 N.W. 866,63 Iowa 185
• Parties: RUGGLES v. THE TOWN OF NEVADA
• Court: Iowa Supreme Court

18 N.W. 866

63 Iowa 185

RUGGLES v. THE TOWN OF NEVADA

Supreme Court of Iowa, Davenport

April 9, 1884

Appeal from Story Circuit Court.

THE plaintiff, while walking on one of the sidewalks of the town of Nevada, claims to have received an injury because of a defect in the sidewalk. To recover damages for such injury this action was brought. There was a trial by jury, verdict and judgment for plaintiff, and the defendant appeals.

REVERSED.

C. H Balliet, for appellant.

Martin & Sellers, for appellee.

OPINION

SEEVERS, J.

The sidewalk consisted of stringers laid on the ground lengthwise, and planks nailed across the same. The street runs east and west, and the walk runs alongside of a building occupied for business purposes by one Alderman. The plaintiff and David Child were passing along the walk, when one Bell attempted to pass ahead of them. In doing so, he stepped on a loose plank, which caused it to tip, and the plaintiff's foot caught against the raised end of the plank, and she was thereby injured.

While the plank was loose and liable to tip under the circumstances above stated, yet its condition in this respect was not visible to any one passing along the walk; nor do we understand that the walk was in any other respect defective at that place.

A witness for the plaintiff was asked the following questions: "State whether or not you noticed that the walk was out of repair in that locality, near where she got hurt, prior to the time of her injury." This question was objected to, but the objection was overruled, and the witness answered: "Well, I noticed the plank was kind of rotten along there. I didn't notice that any of them was loose though." It was a material question on the trial, whether the defendant had notice of, or under the circumstances should have known of, the defect in the sidewalk, which caused the injury. There was evidence tending to show that the walk was out of repair from twenty-five to fifty feet east of the place where the plaintiff was injured. The defect in the walk, which caused the injury, was not, as has been said, even visible, much less was it notorious. The defendant did not have express notice that the plank was loose, and we do not think it should be charged with constructive notice of the defect which caused the injury. For the purpose of charging the defendant with such notice, the question above set out was propounded to the witness.

We think the objection to the question should have been sustained. In the first...