Spicer v. City
| Decision Date | 19 December 1902 |
| Citation | 92 N.W. 884,118 Iowa 561 |
| Parties | SPICER v. WEBSTER CITY. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Hamilton county; J. R. Whitaker, Judge.
Action for damages. From a judgment against it, the city appeals. Affirmed.J. H. Richard and G. D. Thompson, for appellant.
Wesley Martin, for appellee.
While walking over a sidewalk of defendant city, plaintiff was tripped by a loose plank, and fell. In its charge, and by special interrogatory, the court submitted to the jury whether the defendant had actual notice of the defect in the walk prior to the accident. The interrogatory was answered in the affirmative. Appellant now insists that the answer is without support in the evidence. If this be conceded, appellant cannot complain, for it requested an instruction, proper in form, which was fairly embodied in the seventh and fourteenth paragraphs given, submitting this precise issue. A party may not lead the court into the commission of error, and then make it a basis for reversal. Light v. Railroad Co., 93 Iowa, 83, 61 N. W. 380;Renner v. Thornburg, 111 Iowa, 515, 82 N. W. 950;Campbell v. Onusby, 65 Iowa, 518, 22 N. W. 656;Smith v. Railroad Co., 38 Iowa, 173;Bonnot Co. v. Newman, 109 Iowa, 580, 80 N. W. 655. An answer to a special interrogatory decisive of an important, though not determinative, fact in issue, when without support in the evidence, but in conflict with it, is a sufficient showing of passion and prejudice on the part of the jury to call for a new trial. Baldwin v. Railway Co., 63 Iowa, 210, 18 N. W. 884;Heath v. Mining Co., 65 Iowa, 737, 23 N. W. 148;Jeffrey v. Railroad Co., 51 Iowa, 439, 1 N. W. 765. But a distinction seems to have been drawn between answers to interrogatories in conflict with the undisputed testimony and those merely not supported by it, and the latter, when not essential to the verdict, do not furnish ground for interference with the verdict. Phœnix v. Lamb, 29 Iowa, 352;Purcell v. Railway Co. (Iowa) 91 N. W. 933;McMurray v. Hughes, 82 Iowa, 47, 47 N. W. 883. The evidence was such that the jury might have found the defendant charged with constructive notice, and hence the finding as to actual notice did not necessitate a new trial.
2. In the eighth instruction the jury was told, in determining whether defendant was negligent in the maintenance and repair of the walk at the place where plaintiff was injured, and whether it had notice, “to consider the length of time the alleged sidewalk had been built, the material with which it was constructed, the manner of its construction, the nature of the alleged defect,--whether or not it was apparent and readily observable, or whether it was such that it would not be noticeable unless a...
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