68 Iowa 178 | Iowa | 1885
The only question made in the argument by appellant’s counsel is as to the correctness of the following instruction which was given to the jury by the circuit court:
' “Actual notice to one of the members of the town council of defendant is notice to defendant; but same must be as to the defect or danger which caused the injury to plaintiff, and not another defect or danger, although at the same place. And should you find from the evidence that one of such council had knowledge of a defect or clanger in the sidewalk where plaintiff was injured, and that such defect was repaired before the injury to plaintiff occurred, then such knowledge would not constitute the required notice in this case.”
It is contended that under the first paragraph of this instruction plaintiff could not recover upon proof that defendant had actual notice of the general bad condition of the walk at the place where the accident occurred, but that he is required by it to prove notice of the particular defect which caused the injury. That paragraph, however, was not intended as a distinct proposition. The instruction as a whole expressed what the court held to be the law applicable to a state of facts which the evidence tended to prove; and, in determining what meaning is expressed by it, we should consider it as a whole. There was evidence tending to prove that some months before the accident the sidewalk at the place where the accident occurred was out of repair, and that this was well known to a member of the town council, and that he directed the owner of the abutting property to have it repaired, and that it was repaired, but that one or more of the planks had become loose, and that this caused the injury.
Affirmed.