90 Iowa 585 | Iowa | 1894
I. In 1891 the defendant town, for the purpose of laying its mains for water, had excavated a ditch about six feet deep on and along Second street, and near the north side thereof, which excavation extended across Main street in said town. There was a crossing on the west side of Main street extending over said Second street, and said excavation came up to the sides of said crossing near the north side of Second street. This sidewalk crossing was three feet wide. The excavation spoken of had existed for some weeks prior to the occurrence of the injury in question. A water pipe had been laid in the bottom of the ditch, but the ditch had not been filled, prior to the accident. On the evening of October 20. 1891, plaintiff and
II. Very many errors are assigned and argued, some of them arising upon the admission and rejection of evidence. As, for errors in the giving of instructions, the case must be reversed, we need not consider the errors above referred to; for on another trial the same questions are not likely to arise. Nor, in view of our disposition of the case, would it be proper for us to pass upon the sufficiency of the evidence to support the finding of the jury, as it may be materially different on another trial.
III. It is urged that the court erred in giving the second instruction. In this instruction the jury is told that defendant is bound to keep its streets, sidewalks and crossings in a safe condition for public travel. In the third, fourth, and seventh instructions the jury was properly told, in substance, that it was the defendant’s duty to use ordinary care and skill to make its streets and crossings reasonably safe for the use of travelers: and in the third instruction it was
IY. Complaint is made of the sixth instruction given by the court. It is as follows: “The plaintiff was on her part held to the exercise of ordinary care, but she was not bound to a greater degree of care in the nighttime than in the daytime. And in determining this question you are to take into consideration the place where it happened, the time of night, the construction and width of the crossing, and the declarations of the plaintiff at or immediately after the injury happened, in reference thereto, if you find she made any such declarations, and all the other circumstances in evidence surrounding the transaction. The same degree of care is to be used at all times, but greater caution or watchfulness should be exercised at night than in the daytime.” This instruction is criticised by counsel, first, as assuming that plaintiff had in fact received the injury; second, because it directed the jury to consider, as bearing on the question of negligence, the construction and width of the crossing; third, because it was uncertain, misleading, and inconsistent. It is true that by the pleadings the fact of injury was denied by defendant, and hence may be said to be a question for determination by the jury, under the evidence.
We fail, however, to find any conflict whatever in the evidence touching the fact that plaintiff was in fact injured by falling into the excavation. There is nothing to show that the injury was received at any other time, or in any other manner. If it be conceded that
Y. It is said that the court, in its charge, fails to instruct the jury touching the matter of notice to the defendant, of the excavation. It is true that the jury was not advised by the instructions as to the fact that the defendant, in order to be held liable, must have had actual notice of the defect, and an opportunity thereafter to remedy it prior to the accident complained of, or that it must have existed for such a length of time prior to the accident and have been so obvious, as that it may be presumed that the defendant had knowledge of it, and an opportunity to remedy it. The jury should have been fully instructed as to all the elements essential to plaintiff’s recovery, and this would include this matter of notice. No instruction was asked by the defendant upon this branch of the case. While it is a general rule that a case will not be reversed for a failure to instruct on some point upon which an instruction would have been proper, and while in such eases it is usually incumbent on the complaining party to ask an instruction, yet such is not the invariable rule, especially in cases wherein the omitted instruction is essential to a full and proper submission of the case and necessary for the proper guidance of the jury. But we are not called upon to decide whether the failure to thus instruct on the question of notice was reversible error in this case, as we do not find that this question was presented to the court below. For aught that appears, it is made for the first time in this court, and under such circumstances, we can not pass upon it.
VII. In the eleventh instruction the court also told the jury: “And in assessing the plaintiff's damages, if a permanent injury has been proven from the evidence, the jury may take into consideration the permanent loss and damage, if any is proved, arising from any disability resulting to the plaintiff from the injury in question, which renders the plaintiff less capable of attending to her ordinary duties than she would have been if the injury had not been received.” The same thought is expressed in the twelfth and thirteenth instructions in somewhat different language. The evidence is that plaintiff is a married woman; that as such her duties are that of a wife keeping house for her husband. Being such, and not engaged in business on her own account, recovery for loss of her services could be had only by the husband. It is said in Van Doran v. Marden, 48 Iowa, 188: “We know of no legislation which changes the relations of husband