Stafford v. City of Oskaloosa

• Decision Date: 23 July 1884
• Parties: STAFFORD v. THE CITY OF OSKALOOSA
• Court: Iowa Supreme Court

20 N.W. 174

64 Iowa 251

STAFFORD v. THE CITY OF OSKALOOSA

Supreme Court of Iowa, Des Moines

July 23, 1884

Appeal from Poweshiek Circuit Court.

THIS action is prosecuted by plaintiff to recover damages in consequence of a personal injury sustained by him, as he alleges, in consequence of the negligence of the defendant in permitting an obstruction to remain in one of its streets. There was a verdict and judgment for plaintiff in the circuit court, and defendant appeals.

AFFIRMED.

F. M Davenport, and Lafferty & Needham, for appellant.

John F Lacey, and Bolton & McCoy, for appellee.

REED J. ADAMS, J., dissenting.

OPINION

REED, J.

I.

The accident in which plaintiff sustained the injuries complained of occurred in December, 1878. Plaintiff and one Clark were riding in a sleigh, drawn by a single horse driven by Clark. The sleigh was upset at the corner of High and Marion streets, and plaintiff was thrown violently on the ground, sustaining a fracture of the neck of the left thigh bone. High and Marion streets cross each other at right angles, the former running east and west, and the latter north and south. There are crossings over Marion street on the south side of High, and over High on the east side of Marion. Some months before the accident the street commissioner of defendant, in cleaning these crossings, threw the mud and earth taken from them into a pile north of the crossing over Marion street. At the time of the accident this earth formed a mound about five feet wide at the base, and about one foot high at the center, and it was frozen solid and covered with snow.

Plaintiff and Clark came from the south on Marion street, and were in the act of turning to the east into High street, when, as the evidence tends to show, the runner on the right-hand side of the sleigh struck this mound, and the sleigh was upset.

The evidence shows that the mound was situated about twenty-two feet and six inches from the corner of the block lying in the angle of the two streets, and that it was about two feet outside of the beaten track ordinarily followed by vehicles passing from one street into the other.

The first position taken by counsel for appellant is, that it was not negligence on the part of the city to permit this mound to remain in the street. The claim is that the soil of which the streets of the city are composed is of such a character as that accumulations of earth, quite as dangerous to travel as the mound in question, are liable to occur at every crossing in the city from the ordinary use of the streets, at any time when they are muddy, and that to require the city to provide against them is to impose an unreasonable and very onerous burthen upon it.

The defendant, however, is charged with the duty of keeping its streets in reasonable repair, and the difficulties that may attend the performance of that duty will not relieve it from the performance of it. They have the effect rather to increase the diligence required of it in its performance.

If the mound was an obstruction in the street, if it interfered with the safety of travel on the street, it was clearly the duty of defendant to remove it. Whether it was such obstruction is a question of fact, and the finding of the jury on the question is sustained by the evidence.

II. When the case was before this court on a former appeal, we approved an instruction given the jury on the trial, to the effect that it was the duty of the city to keep its streets which are open to public use in a reasonably safe condition for the entire width thereof between the sidewalks. See 57 Iowa 748. The circuit court gave substantially the same instruction on the last trial. Appellant assigns the giving of this instruction as error. It is contended that the evidence on the last trial tended to bring the case within the rule that when, in the improvement of a highway, a path of sufficient width for the accommodation of the travel has been constructed, the public corporation charged with the duty of keeping it in repair performs that duty when this traveled way is kept free from obstructions which endanger the safety of traveling thereon.

We think, however, that under the evidence the duty of the city is correctly stated in the instruction. The original surface of the streets, at the place where the accident occurred, was level. There was a sidewalk on each side of High street and on the east side of Marion street, and immediately outside of these sidewalks were open ditches constructed for purposes of drainage. The crossings were constructed of stone in the middle of the street, with plank extending from the stones to the sidewalks, spanning the ditches. The streets had been graded up slightly in the center, but there was nothing to confine the travel to the highest part of the street, nor was there anything in the character of the improvement to indicate that it was the intention of the city that it should be so confined. No portion of the streets were paved or macadamized, and they were open to travel for their whole width between the ditches. Vehicles passing on the highest part of the grade and over the stone portions of the crossing would not strike the mound, it is true, but there was nothing to confine them to that portion of the street, and a very considerable part of the travel passed over the portions of the street between the ditches and the top of the grade, and over the plank portions of the crossings. Under the circumstances, we think it cannot be claimed that the city was released from the duty of keeping the streets in repair for the entire width thereof between the ditches.

For the purpose, as is claimed, of bringing the case within this rule, the defendant asked a witness the following question: "State whether that portion of the street at that time, at that place where the plank crossing was, was worked or prepared, or intended to be prepared, by the city as a portion of the street for public travel with teams." This question was objected to as incompetent and immaterial, and as asking for the opinion of the witness. The objection was sustained, and this ruling is assigned as error. The ruling is correct. The question whether the city was bound to keep the whole width of the street in repair was to be determined from the character of the improvements made upon it, rather than from any intent with which such improvements were made.

If the work done on the street prepared it for travel with teams throughout its entire width, and nothing was done to exclude travelers from using any portion of it, the city cannot be heard to say that its purpose was that but a portion of it should be so used. Besides this, the question called for the opinion of the witness, and the subject of the inquiry was not one upon which an opinion of the witness could be given in evidence. No question of science or special skill was involved in the inquiry, but the judge or jurors, when informed as to the facts of the case, could determine the ultimate question quite as well as the witness. A number of other questions of the same character were asked, but they were all properly excluded.

III. Appellant insists that plaintiff was guilty of such contributory negligence as defeats his right of recovery. The claim is that neither he nor Clark gave that attention to the surroundings which ordinary prudence demanded, and, if they had used such ordinary precaution, they could have seen the mound and avoided the danger. The question, however, was fairly submitted to the jury, and we think their finding is warranted by the evidence.

IV. In an instruction on the measure of plaintiff's damages, the jury was told that if he was entitled to recover in any sum "he may receive all the damages proceeding continuously from the injury sustained which he has suffered up to the present time, and also such as it is reasonably certain he will continue to suffer in the future." Appellant assigns as error the giving of the portion of the instruction just quoted. The objection urged by counsel is, that the jury are not restricted by the language of the instruction to the evidence, in making the assessment of damages on account of future pain and suffering, but are permitted to make such assessment on mere conjectures. The evidence introduced on the trial shows as clearly, perhaps, as it can be shown in any case, the inconvenience and suffering which plaintiff will sustain in the...