177 Iowa 101 | Iowa | 1916
I. The plaintiff, while walking along the north side of Main Street in Anamosa, after crossing Garna
‘ ‘ I caught my toe on the raised place where that approach
This occurred January 14, 1914, at about 8 o’clock in • the evening. There was evidence tending to show that the condition of the walk might have been seen at a considerable distance, and the city admitted having had "full knowledge of its condition long enough to charge it with notice.
“Q. When you were walking over from the Warren’s store and over towards G-ildner’s store, going east, just state to the jury whether you were looking ahead or whether looking down or up or which way, if you remember. A. I don’t just remember which way I was looking; I usually look straight ahead as I walk along.”
She also testified that the sidewalk looked five inches higher than the approach, but that she could not say when she noticed this.
“Q. Did it look that high that night? A. I couldn’t tell just how high it looked. I stepped my foot — it was raised higher than the approach. Q. You knew it was higher, but you didn’t know how high? Is that it? A. I couldn’t tell just how high. ’ ’
This testimony neither shows that she was not looking
III.' The street commissioner, after testifying to his familiarity with the corner and how lighted, was asked:
“Mr. James E. Remley: We move to strike out the answer for the reason that it is the conclusion of the witness, and he has not shown himself competent, and for the further reason as he is drawing comparison as to other corners in town, and it is immaterial.
‘ ‘ The Court: The motion is overruled. (Plaintiff excepts.) ”
Had timely objection been interposed, it must have been sustained. There was no evidence as to how other portions of the city were lighted, and, of course, such evidence would have been inadmissible. In any event, the comparison had no bearing on the issues being tried. But, as frequently held, a party may not wait for an answer, and, when it proves to be unfavorable, ask to have it excluded. The objection should be to the question, or, if the witness is too quick to permit of this, the record should disclose this fact, in order to render
Though a litigant may not insist on the exclusion on motion of evidence introduced without objection, it is within the court’s discretion to strike out improper evidence on motion of either party, and possibly, in a proper case, on its own motion. From the fact that the evidence was objectionable, it is to be inferred that the ruling on the motion was based on the failure to interpose timely objection. So grounded, the ruling will not be denounced as erroneous.
“The word ‘dangerous’ is the opposite of the word ‘safe.’ When a given place in a highway ceases to be safe it becomes dangerous.”
There was no error in the use of the word “dangerous” in the instruction.
This is said to lower “the degree of care on the part of the defendant,” it being argued that defendant was bound to use sufficient care to keep its sidewalks in such repair as to render them reasonably safe. The position is untenable. A municipality is under obligation to maintain the streets in a reasonably safe condition, but is not absolutely required to accomplish this- in order to avoid liability. All exacted is that it exercise that degree of care in undertaking to so maintain them as would be exercised by an ordinarily cautious and diligent person under like obligation and in like circumstances. This is the measure of its duty, and liability attaches only when it falls short of this in -performance thereof. Hall v. Incorporated Town of Manson, 90 Iowa 585; Crandall v. City of Dubuque, 136 Iowa 663; Witt v. Town of Latimer, 139 Iowa 273; Harvey v. City of Clarinda, 111 Iowa 528.
The judgment is — Affirmed.