Thomas v. Town of Brooklyn

• Citation: 58 Iowa 438,10 N.W. 849
• Parties: THOMAS v. TOWN OF BROOKLYN.
• Decision Date: 16 December 1881
• Court: United States State Supreme Court of Iowa

58 Iowa 438

10 N.W. 849

THOMAS

v.TOWN OF BROOKLYN.

Supreme Court of Iowa.

Filed December 16, 1881.

Appeal from Poweshiek circuit court.

Action to recover for personal injuries sustained by plaintiff from a fall, while passing along one of the streets of the defendant, caused by a defective sidewalk. There was a verdict and judgment for plaintiff. Defendant appeals.W. M. McFarland, Haines & Lyman, for appellant.

John F. Scott, for appellee.

BECK, J.

1. We will consider the objections to the judgment of the circuit court in the order we find them presented in the printed argument of defendant's counsel. After the testimony had been all introduced at the trial, the plaintiff was permitted to amend her petition in that part wherein the cause of her fall was described. The original petition alleged that a loose board gave way, thereby causing the plaintiff's foot to slip into a hole in the sidewalk. The amended petition, conforming to the proof, omits the allegations about the loose board, and avers that the walk “was not firm, and was sprung from the ground,” which caused the fall. Without stopping to inquire whether the variance between the proof and allegations of the original petition really demanded the amendment, or whether the amendment changed the issues, but admitting, for the purpose of the case, each proposition, we are of the opinion that the amendment is authorized by the statute, which is most liberal in permitting amendments to pleadings at any time. Code, §§ 2669-2692. If, after the amendment, defendant was not prepared to submit the cause to the jury, a continuance would have been allowed, at the cost of plaintiff, if it had been made to appear that defendant was surprised, or was not prepared to meet the issue raised by the amendment. But defendant made no claim of surprise, and did not inform the court that it could not safely proceed with the trial. It cannot, after having remained silent then, insist now that it was prejudiced by the amendment.

2. The defendant asked the court to give two instructions, the second and seventh, directing the jury, in substance, that to authorize plaintiff to recover, the defect in the sidewalk must have been of such a character that a man of ordinary prudence would have regarded it as dangerous. The thought of the instruction is that defendant ought not to be held liable for trivial defects, but for such only as an ordinarily prudent man would regard dangerous. The court, in an instruction, directed the jury, in effect, that defendant was to be held liable only in case the sidewalk was not reasonably safe for persons passing upon it. Now, it is very plain that a sidewalk that is not reasonably safe would be regarded as dangerous by a man of ordinary prudence. The language of the instructions, both given and refused, appears to us to hold defendant liable only in case the sidewalk was not reasonably safe. The court, therefore, did not err in refusing the instruction asked by defendant, as substantially the same rule it presents is embraced in the one given.

3. The defendant asked the court to instruct the jury that, in determining defendant's liability, they should...