Upon the trial, there was a verdict for plaintiff for one dollar. This verdict the court, on motion of plaintiff, set aside as inadequate, and granted a new trial. From this order the defendant prosecutes this appeal.
Two errors are relied upon by appellant: (1) That the court erred in not sustaining defendant’s motion for a directed verdict.; (2) that the court erred in granting a new trial.
It is the contention of counsel for appellant that there was no evidence of actionable negligence on the part of the appellant, and that her motion for a directed verdict in her favor, made at the close of appellee’s evidence and renewed at the close of all the evidence, should have been sustained; and that,
Tt is to be observed that negligence is not predicated on the faet that the cover was not in place, but on the construction of the cover without means of fastening it in place. It was not intended to be immovable: the use of the areaway and window for the purpose of putting coal in 1he cellar required that it be removed. There is no showing whatever as to how it came to be removed on the occasion in question, — whether it had been left off by someone who was- making a proper use of the opening, or was intentionally removed by someone without right. The evidence establishes without conflict that it was not in place over the opening; but how long this condition had existed, or how or by whom or why it was removed, is not shown. Tt is, however, fairly established that, when in place, it would not be displaced by one in merely walking over it, or by the ordinary use of the sidewalk; that it would require some intentional effort to remove or displace it. Tt was, so far as the evidence shows, securely held in place by its weight and by hanging suspended within the opening in the sidewalk by the projections or dogs at the end. The only direction in which it could be moved out of its proper place was first upward, until one end or side of the grating would pass over the surface of the sidewalk. The only effect of a fastening would be to make it impossible, or more difficult, of removal. So long as it was in place, a fastening could have added little, if anything, to its security in the ordinary use of the walk. When it was entirely removed, the lack of a fastening was not the thing that made the place dangerous; it was the opening in the sidewalk, caused by the removal or absence of the cover; but, as said, to serve its purpose it must be removable. Can it be said, then, that the mere failure to make it more difficult of removal, when it was safe, if in place, was negligence in respect to one who was injured by its not being in place at all? The ultimate question is one of proximate cause. The cover as constructed, and when in place, was reasonably safe for one walking over the sidewalk and stepping upon it; but, if it be conceded that this is at all open to question, the faet remains that lack of
Whether the lack of a fastening might, under some circumstances, constitute actionable negligence, we have no occasion io determine. It is clear that it would not as to one who was not injured by reason of such a lack. So far as appears, the cover may have been removed for a perfectly legitimate and proper purpose. In such case, the only fault or negligence would bo in the failure to replace it; but it is plain that the absence of a more secure means of fastening it in place would not in any manner contribute to the negligent failure to replace it at all. No negligence in failing to have the cover in place is alleged, nor is there any evidence that the defendant was in any manner responsible for its being out of place at the time of the plaintiff’s injury, or that the lack of a fastening in any manner contributed to its being entirely displaced, since its use for the purpose for which it was intended required that it be capable of removal.
The case of Calder v. Smalley, 66 Iowa 219, relied upon by appellee, is not in point. There the cover of a coal hole, when in place and unfastened, was insecure and unsafe, and the injury occurred to one who stepped upon it when it was in place, and was caused by the lack of some means of holding it securely. The same thing is to be said of the case of Hill v. Norton, 74 W. Va. 428 (82 S. E. 363).
It was alleged in the petition that the opening in the sidewalk was constructed and maintained by the defendant without 1he consent, of the city, and the claim was made that this constituted a nuisance, and that defendant would be liable for all injuries resulting therefrom. The evidence shows without conflict that the sidewralk with the opening and cover, substantially as it existed at the time of the plaintiff’s injury, was constructed in 3904, and had since been so maintained; and that, other like openings with similar covers were in general use in the city. The jury was ■ instructed that, from long continued
We have, then, a situation where a verdict for nominal damages in favor of a plaintiff not entitled to recover at all has been set aside as inadequate, and a new trial granted. The trial court has a large discretion in the granting of new trials, and ordinarily its action in so doing will not be reversed. It is also well settled that, where a motion for a new trial is sustained generally, the ruling cannot be interfered with if any of the grounds of the motion are good. Thomas v. Illinois Cent. R. Co., 169 Iowa 337; Woodbury County v. Dougherty & Bryant, 161 Iowa 571. Many other cases to the samé effect could be cited. While the lower court in a written memorandum indicated that the motion was sustained on the ground of the inadequacy of the verdict, other grounds of the motion were not overruled.
However, the discretion vested in the trial court to grant a new trial is a legal discretion, and must be predicated on the record; and where a verdict contrary to the one set aside could not, on the record, be permitted to stand, there is nothing to justify the exercise of discretion. Frink v. Commercial Bank, 195 Iowa 1011. In an action to recover for negligence where there is no evidence of actionable negligence,'— where the act or omission relied upon as constituting negligence was not the proximate cause of the injury complained of, — there is no room for the exercise of discretion in granting a defeated plaintiff a new trial. That is, in effect, the situation here. On the record made, appellee was not entitled to recover, and appellant’s motion for a directed verdict should have been sustained. There is no claim that, upon a retrial, the pleadings or evidence.would or could be such as to avoid this result. McDonald v. Mutual Life Ins. Co., 178 Iowa 863. The appellee was obviously in no position to complain of the award of merely nominal damages,
The order appealed from is — Reversed.