131 Iowa 192 | Iowa | 1906
The alleged negligence of defendant was in failing to discover and remedy an unsafe and dangerous condition of a sidewalk resulting from the decay of the wooden stringers running lengthwise of the walk, so that the cross-planks of the walk became loose, with the result that when plaintiff and a person walking with him met another person on such walk, and the latter, turning out for the purpose of passing, stepped on the outside end of one of the cross-planks, it tipped up and caused the plaintiff to trip and fall. The complaint for appellant is that the court erred in not properly instructing the jury with reference to
On this question the instruction of the court was that it is the duty of a municipal corporation to keep its sidewalk in a reasonably safe condition for travel, and that plaintiff must prove by preponderance of the evidence that the city had negligently failed to keep the walk at the place of the accident reasonably safe for travel; and further that the city officials were chargeable with notice of defects in sidewalks by reason of decay of stringers to the same extent and in the same manner as they would be chargeable with notice of defects that were plainly to be seen, and to no greater extent; and further that, as to all defects either apparent or latent, the law requires the exercise of ordinary care to ascertain the condition of sidewalks and keep them in an ordinarily safe condition for travel. The court refused an instruction asked by plaintiff to the effect that a municipal corporation is held to have notice of dangerous defects in its sidewalks arising from the natural wear and decay whenever such condition has existed so long that, in the exercise of reasonable oversight and care by the officials of the municipality, it should have been discovered and remedied.
The difficulty with the instructions asked is, throughout, that they assume negligence by reason of the age of the walk without any evidence that in the exercise of reasonable care the officials of the city should have known that the stringers were so far decayed that the walk was dangerous.
Finding that the alleged errors have no .foundation in the record, the judgment of the trial court is affirmed.