Yeager v. Incorporated Town of Spirit Lake
| Decision Date | 06 February 1902 |
| Citation | 88 N.W. 1095,115 Iowa 593 |
| Parties | LYDIA ANN YEAGER, Appellee, v. THE INCORPORATED TOWN OF SPIRIT LAKE, Appellant |
| Court | Iowa Supreme Court |
Appeal from Dickinson District Court.--HON. W. B. QUARTON, Judge.
ACTION at law to recover damages for personal injuries sustained by plaintiff while passing along and over a sidewalk in the defendant town. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.
Affirmed.
V. A Arnold and Corey & Everett for appellant.
St Clair & Reigard and Milt H. Allen for appellee.
While passing along and over one of the sidewalks in defendant town, plaintiff, an old lady, 69 years of age, tripped and fell thereon, and, because of her fall, claims that she was severely and permanently injured. It is charged that the sidewalk was old and rotten, that the boards and timbers of which it was constructed were weak and insufficient to sustain the weight of persons passing along and over the same, and that defendant was negligent in not repairing it. All these matters are denied in the answer, and on the issues thus joined the case was tried to a jury, resulting in a verdict and judgment for plaintiff.
I. The first point made is lack of evidence to support the verdict. The testimony is conflicting, and with the finding of the jury we should not interfere. The charges of negligence were couched in general terms, and are not specific, as defendant contends. The sidewalk in question was on the east side of lots 2, 3, and 4 in block 20. Plaintiff was permitted, as a part of her case, to show that another lady, who was hurt on this same sidewalk, served notice of her injury on the defendant town. It is said that this notice was erroneously admitted, because it did not appear that this other was injured at the same place where plaintiff fell. As plaintiff contended that the entire walk was out of repair, the testimony was admissible. This may also be said of other testimony adduced by plaintiff tending to show that the entire walk along block 20 was out of repair. Hoover v Town of Mapleton, 110 Iowa 571, 81 N.W. 776; Bailey v. City of Centerville, 108 Iowa 20, 78 N.W. 831, and cases cited. Over defendant's objection plaintiff was permitted to show the number of the members of her family. As the court, by its instructions, eliminated all claims for damages except for physical pain and suffering, and medical services and nursing, and medicine, no prejudice resulted, even if the ruling is conceded to be erroneous. Testimony was also offered by plaintiff to show that she had been a weaver. In view of the instructions just mentioned, there was no prejudicial error in the admission of this evidence. Plaintiff was asked whether or not she thought, when she attempted to pass over the walk, that she could do so with safety in view of her knowledge of its condition. Her thought about the matter was a material inquiry. If she knew the walk was unsafe, and that it was imprudent for her to attempt to pass over it, it was her duty to take another one. But knowledge of its unsafe condition was not enough, as a matter of law, to require her to take another route. It should also appear that she knew, or ought to have known, that it was imprudent for her to attempt to pass over it. Owen v. City of Ft. Dodge, 98 Iowa 281, 67 N.W. 281. Evidence was adduced to show the condition of the walk, and repairs made of the same, for many years prior to the accident. This evidence was proper, as tending to show not only the actual condition of the walk from time to time, but defendant's knowledge thereof. A record of the city council, showing that a committee was appointed to look up claims of two others who were injured on this same sidewalk, was introduced by plaintiff. This record was not made until after plaintiff received her injuries, but it related to claims filed before. Evidence as to these prior accidents was properly admitted under the rule heretofore stated; and the record to which we have referred, although not, perhaps, admissible, created no prejudice. The only effect it could have had would be to show that the city had notice of these prior accidents. That was definitely shown by other evidence, and no prejudice resulted. We do not reverse because testimony is admitted out of its proper order. Although not strictly rebuttal in character, the trial court may admit it as evidence in chief, and the mere fact that it is improperly admitted in rebuttal will not be ground for reversing the case. Witnesses were interrogated as to the relative condition of the walk at different times, and generally stated it was in the same condition at one time as another. This called for a fact, and not a...
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