Thomas v. Town of Brooklyn
| Decision Date | 06 June 1882 |
| Citation | 10 N.W. 849,58 Iowa 438 |
| Parties | THOMAS v. THE TOWN OF BROOKLYN |
| Court | Iowa Supreme Court |
Appeal form 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.
REVERSED.
W. M McFarland, Haines & Lyman, for appellant.
John F Scott, for appellee.
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 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, § 2689-2692. 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.
II. The defendant asked the court to give two instructions, the 2d and 7th, 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 from 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.
III. The defendant asked the court to instruct the jury that in determining defendant's liability, they should inquire whether persons unacquainted with the walk were likely to travel over it, thus making the frequency of its use a circumstance to be considered upon the question of defendant's care....
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