66 Iowa 219 | Iowa | 1885
J. The petition alleges that defendant owns a certain house and lot, situated upon Second street, in the city of Muscatine; that the cellar under the house extends into the street, under the side-walk, in which defendant made a scuttle-liole to be used for putting wood in the cellar; that the covering of the hole was negligently constructed, being laid down without fastenings, upon planks which were not nailed; that plaintiff, while passing upon the sidewalk over the cellar, without fanlt or negligence upon her part, stepped upon the covering of the scuttle-hole, which gave way, and she fell into the hole, and thereby received the injuries to recover for which she brings this suit.
The defendant, in his answer, denies the allegations of the j>etition, and, as a special defense, avers that, if plaintiff is entitled to recover upon the cause of action pleaded in the petition, the city of Muscatine, and not defendant, is liable therefor, inasmuch as it is the duty of the city, assumed by ordinance, which is set out in the answer, to construct and keep in repair all side-walks therein. A demurrer to the count of the answer pleading the special defense was sustained.
In an amended petition plaintiff alleges that defendant wrongfully, and without authority, made the covered excavation under the side-walk; and that the cover thereof was properly used by the public ás a side-walk. A demurrer by defendant to this amendment was overruled. Evidence was introduced by each party tending to support his or her side of the several issues.
It will be observed that the petition bases the claim for recovery both on the ground that the scuttle and cover were made and maintained without authority, and that they were negligently constructed. We need not enquire whether the city may be liable as well as defendant. It is sufficient for the purpose of this case to hold that defendant is liable for injuries received by plaintiff, caused by defective construction of the scuttle and cover, and that the rule of City of Keokuk v. Independent Dist. of Keokuk does not apply to the facts of this case.
It may be said, in reply to the argument of defendant’s counsel upon this point, that the ease is that of the unauthor
IV. Counsel for defendant insist that there is no evidence tending to show that the scuttle and covering were negligently constructed. ' We are not of that opinion. It was shown that the covering was without fastenings, and subject to be removed by ■anj'- person. The jury, we think, could
Y. The defect on account of the absence of fastenings pertained to the construction of the cover, and evidence tending to prove it, which was objected to by defendant, was correctly admitted.
IX. The instructions given by the district court are in accord with the doctrines we have herein recognized. Those refused were either in conflict therewith or upon points not involved in the case. One of them, the seventh, was to the effect that it was not the duty of the defendant to fill up the cellar under the pavement, which it appears had not been excavated. The house being built upon a spot where the natural surface of the ground was below the street, the cellar under the pavement was not filled up when the street was graded. This matter had nothing to do with the case, as there was no negligence or failure of duty charged against defendant in connection with the existence of the cellar.
The foregoing discussion disposes of all questions in the case. In our opinion the judgment of the district court ought to be
AffirmeiJ.