Case v. City of Waverly

36 Iowa 545 | Iowa | 1873

Cole, J.

— The testimony tends to prove that at the crossing of Clay and Elm streets, and near to the ditch, private parties had, sometime prior to the accident, dug a well and had constructed a platform and curb to it; that soon after, it was ascertained that the well did not afford water, and hence it was not used, and the platform and curb went to decay and were finally wholly removed, and the well was filled up, by private parties, with dirt, sticks and stones; that afterward, the filling settled and left a hole near three feet deep, into which the plaintiff fell and fractured his ankle one dark night as he was going from his business to his residence. The testialso tends to that the street commissioner of defendant had been notified of the sinking and the hole left thereby, more than once prior to the injury to plaintiff. Under the evidence, the verdict of the jury was justified. It is urged here, that the court erred in refusing testimony as to the condition of the streets beyond the plaintiff’s residence; but it did not, for such testimony was irrelevant. Errors are also assigned upon instructions given and refused. They aggregate thirty-five in number, and nine pages in print, and no particular error is pointed out, and no particular instruction is assailed as containing an error. We have examined them seriatim and carefully, and find no error in them. The third one asked by defendant and refused, and which contains the general proposition, that the plaintiff must have exercised ordinary care to avoid the accident, might properly have been given; but the same proposition was given, in quite as strong terms, in at least three other instructions, hence the error in refusing the one was cured by giving the others.

Affirmed.