Troxel v. City of Vinton

• Decision Date: 31 January 1889
• Citation: 77 Iowa 90,41 N.W. 580
• Parties: TROXEL v. CITY OF VINTON.
• Court: Iowa Supreme Court

77 Iowa 90

41 N.W. 580

TROXEL

v.CITY OF VINTON.

Supreme Court of Iowa.

Jan. 31, 1889.

Appeal from district court, Benton county; L. G. KINNE, Judge.

In June, 1886, Mrs. Sarah Troxel, the wife of the plaintiff, was injured while passing over a sidewalk in the defendant city, and this action was brought by the husband to recover damages. There was a trial to a jury, a verdict, and judgment for the plaintiff, and the defendant appeals.J. C. Traer, for appellant.

J. D. Nichols, for appellee.

GRANGER, J.

No errors are assigned as to the instructions of the court, and the questions for consideration are entirely with reference to the testimony.

1. Appellant first insists that the verdict is not supported by a fair preponderance of testimony. The testimony in the case is brief, and we have carefully examined it. It is true that while three witnesses, including the plaintiff and his wife, testify to the bad condition of the walk, there are five who testify that they frequently passed over it, and noticed nothing wrong. That the walk was, on the 8th of June, when the accident occurred, out of repair, there can be no reasonable doubt. This fact adds something to the force of the evidence that it was for some time before out of repair. It is unquestioned that in the fall of 1885 the plaintiff called the attention of Mr. Means--one of the six witnesses, and at the time one of the officers of the city--to the defect, and particularly called his attention to the approach at the woodshed, where the accident happened. He (Means) then served a notice on Mrs. Butler, the owner of the abutting property, to repair the sidewalk. Mr. Means, in his testimony, says that Mrs. Butler made no change in the walk that he knew of. He also says he discovered nothing wrong with the walk, and that he made no special examination. Three of the witnesses testify that from in the spring the walk was not firm, and that to walk on the side it would “tilt or teeter;” that some of the planks were loose, and it is true that a loose plank caused the accident to Mrs. Troxel. Thus we find that there is some testimony that the walk was out of repair in the fall of 1885, and more that it was from the spring of 1886. The testimony is that one passing along the center of the walk would not notice any defect. This might account for the fact that only a part of those who passed over it noticed a defect. To us it seems that there is a plain conflict of evidence, and that the question of whether or not the walk was out of repair was one for the jury.

2. It is next urged that the condition of the walk was not such as to impart constructive notice to the defendant. The consideration of this question is so akin to the former that it should hardly command further notice. There is some testimony tending to show actual notice. We refer to the complaint or talk of the plaintiff with Mr. Means in October, 1885, which led to a notice on the abutting property owner to repair the walk. It is by no means clear that such a notice did not require a particular examination of the walk to know its condition. But, without so holding, it is sufficient to say that the testimony is of a character to make the question of notice one for the jury.

3. At the close of the testimony the defendant moved the court to instruct the jury to return a verdict for the defendant for the reason that the undisputed testimony of the plaintiff's wife shows that the accident occurred in consequence of her contributory negligence. The motion was overruled, and such ruling is assigned as error. Mrs. Troxel's testimony as to how the injury occurred is as follows: “I reside at Vinton. Am wife of plaintiff. Am forty-eight years of age. During the year 1885, and until June, 1886, lived in the south-east part of town, straight east of the Blind Asylum. I know where Asylum avenue is. The house where I lived was directly east of the College for the Blind, and on the south side. There was a sidewalk all the way from where I lived to the College for the Blind, on the same side. I remember going to a concert at the college about the 8th of June, 1886. I know where the property known as the ‘Butler Property’ is located. It was five blocks west of us, on the south side of the street. My daughter Lillie went with me to the concert. On the evening of the 8th of June, 1886, I went to the concert. I was injured on the sidewalk at Butler's barn or wood-house,--I don't know which it is. There was a window in the north side of the wood-house. It must have been a little east of the window,--close about the window; between it and the corner. I was injured on the walk on the south side, next the wood-house. Was going west. We were on the walk....