185 Iowa 995 | Iowa | 1918
The accident in question occurred on the night of June 3, 1916, on one of the streets of the defendant city. The plaintiff was walking with others upon the sidewalk, and was on the outer edge thereof. By inadvertence, he stepped into a hole which extended to the very edge of the sidewalk. The hole was about 20 inches by 12 inches and about 2 feet deep. He sustained severe injuries as a result of his fall therein. There was evidence that the
The defendant’s contention before us is that, inasmuch as it pleaded the statute of limitations, and inasmuch as it appeared upon the face of the pleadings and record that the action was barred, the burden was upon the plaintiff to prove that his action was begun by the placing of notice in the hands of the sheriff within three months from the time of the injury;
It has frequently been held that the plea of the statute of limitations is an affirmative defense, and that the burden of proof is upon the pleader. The defendant pleaded that the action was not commenced within three months. We see no reason, from this record, why it should not be required to prove that it was not so commenced. It does not, in fact, appear upon the face of the petition or upon the face of the record, as contended by 'the defendant, that the action was not commenced within three months. The argument for defendant is that, inasmuch as the original notice, with the