Stevens v. Citizens' Gas & Electric Co.

• Decision Date: 15 December 1906
• Citation: 109 N.W. 1090,132 Iowa 597
• Parties: J. M. STEVENS, Appellee, v. CITIZENS GAS AND ELECTRIC COMPANY, Appellant
• Court: Iowa Supreme Court

109 N.W. 1090

132 Iowa 597

J. M. STEVENS, Appellee, v. CITIZENS GAS AND ELECTRIC COMPANY, Appellant

Supreme Court of Iowa, Des Moines

December 15, 1906

Appeal from Pottawattamie District Court.--HON. O. D. WHEELER Judge.

ACTION at law to recover damages for a personal injury. Trial was had to a jury, and there was a verdict and judgment in favor of plaintiff. The defendant appeals.

Reversed.

Harl & Tinley and Greene, Breckenridge & Kinsler, for appellant.

John P Organ, for appellee.

OPINION

BISHOP, J.

Defendant is a corporation engaged in operating a gas plant in the city of Council Bluffs. Among other things, it has the charter right to the use of certain streets of said city, including South First street, for the purpose of laying its mains to supply gas to its customers. On September 16, 1904, defendant was engaged in digging a trench for and laying a supply main in South First street, a paved street of said city extending north and south. The work began at the north line of Pierce street, an intersecting street extending east and west. At the close of said day, the work had so far progressed that the trench had been opened to a point about one hundred and ten feet south of the intersection of First and Pierce streets, some of the pipe had been put in, and the trench partially refilled. First street, in its paved part, is about thirty feet in width. A motor line track extends along the street, and was so laid that the east rail was fourteen or fifteen feet from the east curb of the street. The trench was dug close to the west rail of the track, and, in the main, the earth removed was thrown to the west. A short distance south of Pierce street were two catch basins, and, adjacent to these, the earth was thrown over on the east side of the track. The occupation of plaintiff was that of driver for the chief of the city fire department. An alarm of fire was sounded at about two o'clock on the morning of the 17th, and plaintiff with the chief responded, driving rapidly in a buggy south on the east side of First street. One or more of the buggy wheels struck the pile of earth situated on the east side of the motor track, and plaintiff was thrown out, and sustained the injury and damage for which he seeks to recover. The failure of duty on the part of defendant is thus charged: that the pile of dirt which overturned the buggy had been negligently placed upon said street, and negligently allowed to remain there, and in such place and condition so that the same was dangerous, etc.; also in failing to indicate the presence of the pile of earth, and warn travelers on the street against the same, by lights or barriers, or in some other manner. The answer pleads among other things the consent and permission of the city to make the excavation in question.

I. The defendant offered in evidence a paper purporting, as stated by counsel, to be a permit from the city to the defendant, and to give authority to excavate the trench, and lay the pipe in question. Counsel for plaintiff thereupon made admission of the genuineness of the document offered, and that defendant had permission of the city to "lay the gas mains along First street at the place where the ditch was excavated." Having this admission, counsel for plaintiff objected to the evidence offered as incompetent and immaterial, "and no basis or foundation existing for the offer." Thereupon the court inquired of counsel for plaintiff: "Is the offer withdrawn?" The question being answered in the negative, the objections to the offer were sustained. We think the objection should have been overruled. It was material to the defense to show not only that the work of excavation was rightly entered upon, but that it was being prosecuted within the limits of the right. To such end a permit from the city was competent evidence, and defendant should have been allowed to lay the same before the jury. It was not for the plaintiff to control the introduction by defendant of its evidence by making an admission, nor could the scope and effectiveness of the evidence offered be limited or controlled in such manner. But, in view of the record before us, we cannot say that the error was prejudicial.

The trial court evidently thought that the admission was as broad as the evidence offered, and as the appellant did not see fit to...