70 Iowa 193 | Iowa | 1886
I. The petition for a cause of action alleges that defendant negligently permitted the owner of a business
II. The circuit court, in an instruction to the jury, in effect holds that defendant would be guilty of negligence if the door was at the time “ unfenced, and without any guard.” The same thought, to some extent, is repeated in one or two other instructions. We understand that the court held that defendant, as a matter of law, should be held guilty of negligence, if the jury found that there were no barricades, fences, or other protection around the door when opened; thus determining, as a matter of law, that the omissions contemplated in the instruction constituted negligence. We think the instructions are erroneous. The question of negligence is often purely a matter of law, as where an act, under all conditions, would inevitably result in danger or injury to the party who is exposed to the consequences of the act, or suffers therefrom. But if the act may or may not result in injury, depending upon circumstances or conditions, whether it be negligent is a question for the jury to determine. In this case it cannot be said that the absence of barricades or fences about the door would, under all circumstances, be dangerous. The distance the door projects into the sidewalk, the course of travel of pedestrians using the sidewalk, whether near or away from the door, the width of the sidewalk, and other things, would determine whether it was negligence to omit the protections contemplated in the instruction. These were matters for the consideration of the jury,
We know of no rule of law which forbids the construction of ways in the sidewalk to cellars under adjacent buildings. If they may be constructed, they may be used, and, of necessity, the doors may be opened, both in the day time and night time. If, when open, they are sufficiently conspicuous to be seen by a pedestrian using the sidewalk, in the exercise of proper diligence, or are sufficiently lighted in the nighttime to disclose the danger to such person, it cannot be held that the mere omission to have barriers around them is %>er se evidence of negligence which, as a matter of law, creates liability. It will therefore be readily seen that it is for the jury to determine, in the light of all the circumstances, whether the leaving of a cellar door, upon a pavement, open is negligence.
We think the cases cited by counsel for plaintiff, which, we understand, are claimed to support the instructions under consideration, do not go to that extent. They simply hold that cities are liable for injuries resulting from open cellar doors in sidewalks, where they are not guarded or lighted in any manner. It cannot be inferred that they hold that liability exists, if the passer-by was in any manner warned of the danger. We discover no other errors in the court’s rulings upon instructions to the jury.
III. Many questions were, upon the request of defendant, submitted to the jury for special findings of facts. The
Other questions in the case, involving tbe admissibility and effect of the evidence, need not be considered, as they may not again arise upon another trial of tbe case. For tbe same reason, we are not required to consider a motion made by defendant to strike from the files a copy of tbe ordinance of defendant.
For tbe errors pointed out, tbe judgment of tbe circuit court is
REVERSED.