Bills v. City of Ottumwa

35 Iowa 107 | Iowa | 1872

Beck, Ch. -J.

The points presented in argument by defendant’s counsel involve tbe existence of a highway at the place plaintiff received the injuries complained of, the sufficient acceptance by tbe city of a street dedicated to tbe public use by tbe owner of the land, the sufficiency of the evidence to support the verdict, conflict between tbe special findings of tbe jury and their general verdict, and the rejection of certain evidence offered by defendant. These will be noticed in tbe order just given.

I. The court, in the instructions to the jury, laid down certain rules as to what would amount to a sufficient dedication and acceptance of the street in question to make it a public highway, and render defendant liable for negligence in not keeping it in repair. No exceptions were taken to these instructions in the court below, and, for that reason, no objection thereto can be heard in this court, nor has any been made. Without entering into any examination of the principles of these rules, for the purposes of this appeal, they must be regarded as correct. Under them the jury were unquestionably justified in finding that the street was dedicated to the public use, and accepted by defendant. Under this state of facts, defendant would be liable for damages resulting from its negligence in failing to keep the street in repair.

We do not understand that defendant’s counsel insist or argue that, under the rules of the instructions, the evidence fails to show acceptance of the street by the city, but, under rules not recognized by the court, they maintain that acceptance was not established. But the jury rightly followed the law as given them by the court, and their verdict cannot now be tried by the test of other rules not recognized by the court, and not given them as the law of the case.

We may here state our conviction, and it will dispose of the second point made by defendants, that the verdict is not supported by the evidence. There was a conflict of evidence, but no such absence of proof as to warrant the conclusion that the verdict is not the result of an honest and intelligent exercise of judgment on the part of the jury. The district court correctly ruled in refusing to disturb it.

3. verdict and findings. II. The jury returned, at the request of defendant, thirty-three special findings. Many of these, it is argued, are in conflict with the general verdict. We will proceed quite briefly to notice the points made by counsel upon these special findings. The jury found tbat tbe plaintiff was riding on a load of straw two feet bigb, fastened on by boards at each end and side; tbat at tbe place of tbe injury tbe street was bad and dangerous, wbicb plaintiff bad tbe means of knowing; tbat tbe danger could bave been seen and avoided by 'ordinary prudence; tbat if. plaintiff bad seen tbe danger be could bave avoided it by getting off of tbe wagon; tbat be did use ordinary care to avoid being thrown from tbe wagon; tbat be used proper caution in tbe manner in wbicb be rode over tbe street, and tbat be did use ordinary prudence in loading tbe straw, and in going with it to tbe place where tbe accident occurred.

It is insisted tbat these special findings show tbat plaintiff contributed by bis negligence to tbe accident, and cannot therefore recover. We think otherwise. These special findings expressly show tbat plaintiff was in tbe exercise of ordinary care when tbe accident happened, and tbat be did use ordinary prudence in going with tbe wagon upon tbe street. He cannot, therefore, be charged with negligence. There appears to be a conflict in tbe special findings as above stated; one of them being to tbe effect tbat, by tbe exercise of ordinary prudence, tbe danger could bave been avoided, and tbe others in substance that plaintiff did exercise ordinary care and prudence in going with tbe wagon over the street, and in bis manner of riding upon it. But reading tbe findings as they appear in tbe abstract, such conflict, to our minds, disappears, and they harmonize quite as well as could be expected of tbe answers to thirty-three questions asked of tbe jury by expert counsel with tbe design of drawing out a conflict in tbe facts and conclusions, to be stated. Considering the 29th, 30th and 31st findings together, it is quite apparent tbat tbe jury ' intended to say tbat plaintiff could bave avoided tbe danger by getting off of tbe wagon at tbe place of the accident. But they found tbat plaintiff exercised care and prudence in going with tbe wagon over tbe place of tbe accident, and in the manner of his riding thereon. Certainly if he could, in the exercise of prudence and care, go over the street in the wagon, prudence would not demand that he should get out of the wagon at the same place. The jury clearly intended to be understood in the language they used, to find that a man of ordinary prudence could have avoided the danger by getting out of the wagon, not that the exercise of such prudence required him to do so. To justify a judgment upon special findings against a general verdict, the findings must be inconsistent therewith. Rev., § 3080. In our opinion the special findings are not inconsistent with the general verdict.

i. evidence: opinions. III. In the progress of the trial, defendant proposed to prove by a witness that he was a teamster and farmer of l°ng experience, and familiar with loading and hauling straw and hay, and that a wagon loaded in the manner of the wagon upon which plaintiff was when he was injured, was not safe for riding upon over ordinary roads. The court ruled, as we think correctly, against the admission of the proposed evidence. The rule admitting the opinions of witnesses called experts, and under this rule the evidence was offered, is confined to questions of science and skill. There is neither science nor skill involved in the proposed’evidence, and it does not appear that the jury were not as familiar with the subject as the witness himself. The offered testimony was therefore properly excluded. 1 Philip’s Ev. (Oowen & Hill’s and Edward’s Notes), 780; 1 G-reenl. Ev., § 480.

~We have noticed all the points made by defendant’s counsel and find no error in the record. The judgment of the district court is

Affirmed.