Stevens v. City of Chariton
Decision Date | 27 June 1918 |
Docket Number | No. 32039.,32039. |
Citation | 184 Iowa 59,168 N.W. 310 |
Parties | STEVENS v. CITY OF CHARITON. |
Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Lucas County; Seneca Cornell, Judge.
Action to recover damages consequent on a fall, resulted in a judgment for the plaintiff. The defendant appeals. Affirmed.J. W. Kridelbaugh, of Chariton, for appellant.
C. F. Wennerstrum and William Collinson, both of Chariton, for appellee.
Court avenue of the city of Chariton extends east and west. In the sidewalk, four feet in width and on the north side thereof, between Sixth and Seventh streets, as is alleged, was allowed by the defendant during November, 1915, and the year previous “to exist a dangerous place in said sidewalk, due to a demolition of a prior existing sidewalk upon which were scattered loose and broken bricks and bricks protruding from an uneven surface of the ground, the ground at the time of the accident herein complained of being frozen and irregular and uneven, said condition existing on the south side of lot 26 of Eikenberry and Stewart's addition” to said city, of which condition the officers of the city had long been aware; that on November 29, 1915, at about 2:30 o'clock in the morning, plaintiff with her niece, while passing in front of said lot 26, stumbled over said loose bricks and rough and uneven surface and the protruding brick and fell “at a point of approximately 139 feet west from the curb line of Sixth street and on the south side of lot 26, seriously injuring her. The answer was general denial. The evidence tended to show that Mrs. Stevens with her niece arrived at the depot of the Chicago, Rock Island & Pacific Railroad Company, in Chariton, at about 2 o'clock in the morning, and, as the omnibus was loaded and the train on the Chicago, Burlington & Quincy Railroad Company's line was due for Osceola in about a half hour, they undertook to walk to the depot of the latter company. As they were passing in front of lot 26 aforesaid, plaintiff fell.
[1][2][3] The jury, in answer to special interrogatories, found that there was no brick sidewalk in front of lot 26, and none “which would permit of two persons walking thereon side by side.” Counsel for appellant contends that these answers were inconsistent with the verdict, for that under the undisputed evidence the plaintiff must have been injured while walking on a sidewalk, and therefore motion for judgment notwithstanding the verdict should have been sustained, and in any event a new trial should have been granted. Disposing of the contention that judgment should have been entered non obstante, we have to observe that the petition, as seen, does not allege the existence of a sidewalk, and neither the evidence nor the special findings are inconsistent therewith. It is said, however, that under the undisputed testimony, the injury must have been suffered when walking on a brick walk, and hence elsewhere than in front of lot 26. If so, defendant would not be entitled to judgment non obstante, for resort may not be had to the evidence as a basis for such a motion. Schulte v. C., M. & St. Paul R. Co., 144 Iowa, 89, 86 N. W. 63. But if the evidence were contrary to the special findings this might constitute ground for new trial. A review of the evidence discloses that there was no such inconsistency.
The plaintiff testified:
(The witness explained that it threw her down.) She answered that it was in the walk, and later on that it was on top of the walk, but, on redirect examination, that she did
The niece described the place of the fall with reference to the house, and Bradbury testified that bricks were scattered around in there. “They had a walk along the side, * * * and they put one on the other side, and they were scattered all over.” Paton, who owned lot 26, swore that the brick of the walk in front of it had been removed and piled up in the yard and on the parking except those strung along on the south of the walk line to walk on.
Willoughby described the walk at that place as “rough”; said “there was a walk around the north side of it, three bricks wide; then there were bricks scattered along in the walk;” that “there was no regularity as to where the walk should have been;” and that the bricks were “just scattered like some one had thrown down a little way apart to step on, just scattered them around that way.” Pettit declared that:
“The walk was full of brick from one end to the other, scattered in there irregularly,” and that...
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