Wheeler v. City of Boone

Decision Date08 April 1899
Citation108 Iowa 235,78 N.W. 909
PartiesWHEELER v. CITY OF BOONE.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from district court, Boone county; D. R. Hindman, Judge.

Action for personal injuries. Judgment for plaintiff, and defendant appealed. Reversed.Whitaker & Dale, for appellant.

R. F. Jordan, for appellee.

GRANGER, J.

1. The plaintiff, Earl Wheeler, is a boy 14 years of age, and is afflicted by a stiffening of the muscles and joints, through what is called “callositation.” Because of this, he is moved about in a tricycle. About April 8, 1897, he was going to school with his brother, a boy 2 years his junior, to draw or push the tricycle; and on one of the walks of defendant city, because of a defect in the walk, he was thrown from the tricycle and injured; and this action is for the damage suffered. The walk on which the accident occurred was four feet in width, made of boards placed on three stringers. The defect, as shown, was in one of the boards, about eight inches wide, being broken so that on one side of the walk it was from 1 1/2 to 2 inches below the surface; and, when stepped upon, it would go down, and then spring back, so as to be as we have described. This was at a place where the walk descended in the direction the boys were going; and it appears from their testimony that they were going quite fast down the hill, and the younger brother, who had been pulling the vehicle with a rope, because of its speed left the front, and went behind it to hold it back; and, just as he reached there, the front wheel went into the hole in the walk, and Earl fell out and was injured. It is urged to us that the evidence does not justify a finding of negligence on the part of the city, nor that the boy was injured because of the defect in the walk. We cannot agree with appellant as to either. We would be better satisfied with a finding for the city on both questions, but it is not to be well said that there is not a substantial conflict, as to both propositions, in the evidence. As to the condition of the walk, and how long it had been out of repair, there was affirmative proof that the walk had been for some time--two months or less--in the condition we have described, so that the city, in exercise of ordinary care, would have known it. There is a strong showing, from those who used the walk, and ought to have known of the defect, if it was there, that they did not know of it; but, with the affirmative proof of the fact, this want of knowledge does not destroy the conflict. As to how the injury occurred, the boys both say the wheel of the tricycle went into the hole, and Earl was thrown out. It is true, they do not agree as to some particulars that might be considered in weighing the evidence, but nothing so overcomes their statements as to nullify the finding of the jury.

2. The city has an ordinance prohibiting the use of its sidewalks of “all varieties of vehicles known by the general term ‘bicycles.’ Defendant offered the ordinance in evidence, and it was rejected, and rightly so, for it was immaterial; a tricycle not being a bicycle. Nor are they known by the general term “bicycle.” It is probably true that both are vehicles, but the ordinance is not against the use of vehicles, unless they come under the general term “bicycle.”

3. The court also rejected, as evidence, an ordinance as follows: “Whoever shall lead, ride, or place any beast of burden, or vehicle, on any sidewalk or footway, otherwise than going in or out of premises owned or occupied by himself or his employer, or shall allow the same to stand or remain upon any street crossing, to the inconvenience of persons, shall be...

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6 cases
  • Lee v. Salt Lake City
    • United States
    • Utah Supreme Court
    • 30 December 1905
    ... ... Syracuse [N.Y.], 61 N.Y.S ... 313; Sutphen v. Town [N.Y.], 30 N.Y.S. 128; ... Leslie v. Grand Rapids [Mich.], 78 N.W. 885; Wheeler ... v. Boone [Iowa], 78 N.W. 909 ... Opinion ... evidence is admitted on grounds of necessity only. The rule ... that witnesses should ... ...
  • City of Florence v. Stack, 8 Div. 23
    • United States
    • Alabama Supreme Court
    • 11 July 1963
    ...1268, 123 Am.St.Rep. 69, 13 Ann.Cas. 1012; Holland v. Bartch, 120 Ind. 46, 22 N.E. 83, 16 Am.St.Rep. 307; Wheeler v. City of Boone, 108 Iowa 235, 78 N.W. 909, 44 L.R.A. 821. "A municipality is required to maintain only the respective portions of the street, divided into sidewalks and roadwa......
  • Hill v. Reaves
    • United States
    • Alabama Supreme Court
    • 21 January 1932
    ... ... Hill, a minor, ... suing by his next friend, A. C. Hill, against J. U. Reaves ... and the City of Mobile. From a judgment of nonsuit, plaintiff ... Affirmed ... Lyons, ... [139 So. 264.] Holland v. Bartch, 120 Ind. 46, 22 N.E. 83, 16 Am ... St. Rep. 307; Wheeler v. City of Boone, 108 Iowa, 235, ... 78 N.W. 909, 44 L. R. A. 821 ... "A ... ...
  • Barnes v. City of Tucson
    • United States
    • Arizona Court of Appeals
    • 29 February 1988
    ...433 (1961) (bicyclist permitted to seek recovery for defect in sidewalk even though bicycle riding prohibited); Wheeler v. City of Boone, 108 Iowa 235, 78 N.W. 909 (1899) (handicapped teenager being pushed in tricycle can recover for injury from loose sidewalk board); Errante v. City of New......
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