Scurlock v. City of Boone
| Decision Date | 01 June 1909 |
| Citation | 121 N.W. 369,142 Iowa 684 |
| Parties | HENRY SCURLOCK v. CITY OF BOONE, Appellant |
| Court | Iowa Supreme Court |
Appeal from Boone District Court.--HON. C. G. LEE, Judge.
SUIT to recover damages for a personal injury sustained by a fall on a sidewalk in the defendant city. There was a verdict and judgment for the plaintiff, from which the defendant appeals.
Affirmed.
J. L Stevens and H. E. Fry, for appellant.
Harpel Creighton & Cederquist, for appellee.
The plaintiff's wife was seriously injured by a fall on a sidewalk within the defendant city. There is no question as to the defendant's negligence, or as to the sufficiency of the evidence to support a finding for the plaintiff. The errors relied upon for a reversal relate solely to the instructions given by the trial court and to the refusal of the trial court to give an instruction asked by the defendant.
The appellant's principal contention for a reversal is based upon the court's refusal to give its request No. 9, which is as follows: "You are instructed that, if the said Sarah L. Scurlock had previous knowledge of the alleged defect in the said sidewalk, it was her duty to keep it in mind and look for it, unless there was something sufficient to divert her attention, and, if she failed to keep it in mind and look for it, she is guilty of negligence, and the plaintiff can not recover unless you find that the said Sarah L. Scurlock would have met with the accident had she kept the said defect in mind, and used reasonable care to avoid the alleged injury."
In support of its contention for error in refusing to give the above instruction, the appellant says that, where a person has knowledge of the dangerous condition of a sidewalk, it is his duty to keep such danger in mind, and, if in passing over said dangerous place he fails to keep it in mind and look for it, he is guilty of contributory negligence, and, further, that the injured party is guilty of contributory negligence unless he furnishes a reasonable excuse for forgetting the defect. There are several sufficient reasons why the refusal to give the instruction under consideration was not error. In the first place, the testimony without conflict showed that Mrs. Scurlock was injured by being tripped by a loose plank in the walk in question. At the time of the accident she was passing along the sidewalk with a young grandson. They were walking side by side, and it is shown without contradiction that he stepped upon the end of a sound plank that was in its place in the walk, and that it flew up and tripped his grandmother, causing the injury complained of; and, while it is true that the record shows the bad condition of the sidewalk for some distance each side of the point of the injury, there is no evidence tending to show that this particular plank had been loose before the time of the accident. The grandson who was with Mrs. Scurlock testified that the plank that tripped his grandmother was sound, and that it was in place as they approached it, and that there was nothing in its appearance or in the appearance of the walk at that particular point to call their attention to the fact that the plank was loose. In addition to this, Mrs. Scurlock testified that she had been over the walk but two or three times before she received the injury complained of, and that she did not know that the plank that tripped her was loose, or that the sidewalk was in a generally defective and dangerous condition. The instruction asked was therefore based upon facts which did not appear in the record because there is no evidence that Mrs. Scurlock had previous knowledge of the "alleged defect in the said sidewalk," nor was there any evidence tending to show that her attention was diverted from the walk at that time and place. She was not bound to keep in mind a defect which she had never heard of and had no knowledge of. The testimony of other witnesses as to the generally bad condition of the walk along there would not change this rule because the evidence shows that Mrs. Scurlock had passed over the known bad condition; that is, the place where the planks were out of place which of course clearly showed defects. Furthermore, the injury in question was received in the latter part of February, when the ground was frozen, and defective sidewalks could not be as easily discovered as at other times of the year.
But had the request been founded upon the record, we think there would have been no error in refusing it because of the instructions given by the trial court on its own motion. Several instructions were given which directly called the jury's attention to the care necessary on the part of Mrs. Scurlock in passing over a walk which was known to be defective, and, without setting out the language in the several instructions on which we base this conclusion, we are satisfied from a careful examination of the entire charge that the jury could not have been further aided or the defendant's interests more carefully protected by giving the instruction asked. In Kendall v. City of Albia, 73 Iowa 241, 34 N.W. 833, and in Barce v. City of Shenandoah, 106 Iowa 426, 76 N.W. 747, the principal cases upon which the appellant relies in support of its claim that the instruction should have been given, the facts were entirely different from the facts in this case. In both...
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