167 Iowa 163 | Iowa | 1914
I. Plaintiff’s cause of action is based upon the claim that in passing over a board sidewalk in the town of Lovilia, February 26, 1911, she fell and received injuries which resulted in damages to her. She claimed negligence on the part of the town as follows: That it had permitted the sidewalk to get out of repair at the place where she was injured, and so remain in a condition which was dangerous and unsafe for many months prior to such time; that the stringers supporting the boards were rotten, and that at that point the walk was about six inches higher on one side than the other, making a slanting surface; that on the day of her
II. The assignment of errors relate to the question of contributory negligence, the giving of instruction No. 14, and' in overruling a motion to direct a verdict for the defendant. That motion was made at the close of plaintiff’s evidence, at the conclusion of all the evidence, and was based upon the claim that the record shows plaintiff to have been guilty of contributory negligence.
III. While not stated in express terms, the question of defendant’s negligence iñ the respects charged is suggested in argument. Without in detail setting out the evidence on that branch of the case, we conclude from an examination of the record that it required that question to be submitted to the jury, provided that the question of contributory negligence was not one for determination by the court.
Of the cases cited by appellant in support of its contention here, those of Parkhill v. Brighton, 61 Iowa, 103, and McGinty v. Keokuk, 66 Iowa, 725, turned upon the refusal to give requested instructions, which stated the rule that the plaintiff must or should have known it was imprudent to pass over the dangerous place. That of Sylvester v. Casey, 110 Iowa, 257, was made to rest upon the failure of the evidence to show that plaintiff knew there was danger in what he did; that being held to be a necessary element in establishing contributory negligence. Many of the cases cited turn upon the facts and a discussion of them is unnecessary.
Under the rule as now always followed by this court, and as stated above, we are of opinion that in holding the ease as one proper to be submitted to the jury, we think the trial court was right. While Mrs. Covert testified that she knew that the walk was not safe, at a time prior to her injury, and not in good condition, and that she thought it was bad where she attempted to pass over it at the time of her injury, she also testified that its dangerous character was not impressed upon her mind until she fell. She had passed over it before, once on the morning of her injury, and no accident had resulted; and her belief, as testified to by her, that she could then pass over it by being careful introduced in the case the element of fact, to be determined by the jury alone, as to whether she appreciated the danger and was imprudent in attempting to use the walk. The ease of Barce v. Shenandoah, 106 Iowa, 426, relied upon by the appellant, had in it the element which this court held to be controlling, that in addition to the knowledge of the dangerous condition of the walk, the plaintiff had at least once before fallen at the identical place, and because of the same defect.
VI. Instruction No. 14, given by the trial court presented to the jury the question of fact as to the alleged contributory negligence of the plaintiff, including the elements of knowledge and appreciation of danger, and also that of another and safer way, leaving the question as of one of'fact. The instruction was a correct statement of the law. Nor was there error in giving it as immediately following an instruction, No. 13, given at the request of the defendant. The requested instruction which was given told the jury that - if plaintiff knew that the walk was dangerous, and that it was imprudent for her to attempt to pass over it, she was guilty of contributory negligence. Instruction No. 14 stated the alternative of that proposition that, even though she knew of the dangerous condition, but believed, or as an ordinarily prudent person had the right to believe, that she could pass over the walk in safety, then she was under no obligation to select another route, and she would not be guilty of contributory negligence. We find no just ground for the criticism of that instruction, nor of its relation to that which preceded it. It was a logical sequence in statement, and clearly presented to the jury the different conditions which might, under the facts so found, permit or preclude a recovery.
VIII. The case was properly submitted to the jury, and is — Affirmed.