Yahn v. City of Ottumwa

• Citation: 15 N.W. 257,60 Iowa 429
• Parties: YAHN v. CITY OF OTTUMWA.
• Decision Date: 20 March 1883
• Court: Iowa Supreme Court

60 Iowa 429

15 N.W. 257

YAHN

v.CITY OF OTTUMWA.

Supreme Court of Iowa.

Filed March 20, 1883.

Appeal from Wapello district court.

This action was brought to recover damages for an injury received by the plaintiff by being thrown from a wagon in one of the streets of Ottumwa, the accident having been occasioned, as it is alleged, by reason of one of the wheels of the wagon coming in contact with a stone which the city authorities had negligently allowed to remain upon the street. The pleadings are in the usual form of actions of this character, and a trial to a jury resulted in a verdict and judgment for the plaintiff. Defendant appeals.Wm. McNett and W. D. Tisdale, for appellant.

W. H. C. Jacques, S. E. Alder, and Stiles & Beaman, for appellee.

ROTHROCK, J.

1. The plaintiff and her husband, who is a farmer, reside in the vicinity of Ottumwa. On the morning of the day the injury was received, they went to Ottumwa, in an ordinary farm wagon, drawn by two horses, to sell some potatoes and purchase some family supplies. After selling the potatoes, the plaintiff went to another part of the city on an errand, and the husband drove the wagon down along the edge of Jefferson street and left it standing there, awaiting plaintiff's return. When she returned they put some chairs which they had purchased in the wagon, and the plaintiff seated herself upon one of the chairs. Her husband took his seat upon a board laid across the wagon box and started the team. The wagon had moved but a few feet when the plaintiff fell to the street, and by reason of the fall her arm was broken.

It was claimed upon the trial that the fall of the plaintiff was caused by one of the wheels of the wagon coming in contact with a stone in the street in a violent and sudden manner, by which the wagon careened or tipped to one side. There was a great variance in the testimony of the witnesses for the plaintiff as to the size of the stone and its exact location in the street. It was claimed, upon the part of the city, that there was no stone in the street, and that the wagon-wheel did not run against a stone, but that the accident was caused by a sudden start of the team from fright, the wagon being partly in the gutter at the side of the street, and not upon level ground, and for the further reason that the plaintiff was in an unsafe and dangerous position, being seated in the wagon upon an unfastened chair.

It is by no means clear from the evidence that there was a stone in the street, such as is described by the plaintiff's witnesses. The witnesses for the defendants, some of whom were in position to know whereof they testified, stated that no such stone was in the street at the time of the accident. Upon this question of fact the court would not have been justified in interfering with a verdict for either of the parties.

This being the state of the case, it was a most material question whether or not there was any other cause to which the accident was properly attributable than the contact with the stone on the street. Mrs. E. Ulrich was called as a witness for the defendant. She testified that she was sitting at an upper window, in a building near where the accident occurred, with nothing to obstruct her view of the wagon and the street where it stood. She further testified as follows: “I saw the woman coming across Main street from Hill's grocery; she had some chairs and packages in her arms; she put the chairs in the wagon and got in; she sat on a chair, back of the seat in the wagon. When the horses started to go off she fell out. The horses started quick--kind of jumped. I thought I saw a man standing there sprinkling the street with a hose; he was standing on the sidewalk, at the edge of the building, sprinkling down the sidewalk towards the alley; he was sprinkling water near the team, all around them; he commenced sprinkling just a little before the accident happened. She fell out at the same time the horses jumped. The horses in starting gave a quick motion. She fell out right over the sidewalk. Some packages she had in her arms fell out with her. The chair did not fall out.”

Question. “Now I would like to have you state what it was that made the horses jump.” Objected to by the plaintiff because incompetent, and it calls for a conclusion of the witness. The objection was sustained by the court and the defendant duly excepted to the ruling at the time.

Mrs. McGuire, another witness, stated that she was at the window with Mrs. Ulrich, and after describing the position of the wagon and the plaintiff's position therein, she was asked this question: “You can describe, after she got in and sat down on the chair, how the accident occurred, as you now remember it. Give it in your own way--after she sat down.” Answer. “There was some...