125 Iowa 627 | Iowa | 1904
Fourth street, in the defendant city, runs from the business part to the passenger deport of the Illinois Central 'and Minneapolis & St. Louis Railroads. It is one of the main thoroughfares of the municipality. On June 10, 1902, plaintiff was engaged in driving an omnibus, which met the incoming and outgoing trains at the depot above mentioned. He had been engaged in this business for about three weeks, and had driven over the street in question many times daily during this three weeks. Plaintiff claims that this street was defective, in that at or near tire depot, and at the intersection of what was formerly known as Commerce with Fourth street, the city had placed or permitted to he placed therein large boulders, and had permitted a ditch or drain to be constructed near a brick crossing which had been constructed across the street; that the said boulders and the ditch or drain made the said street defective and unsafe; and that plaintiff, while in the exercise of due care on his part, was injured by reason of the omnibus coming in contact with said boulders and running into the ditch, throwing him to the ground, fracturing his jaw, and otherwise hurting his head and back. Defendant’s principal defense was contributory negligence on the part of the plaintiff.
There was ample evidence to support plaintiff’s charge of negligence on the part of the city, and the case comes to us for review with a claim on the part of the defendant that the trial court erred in its ruling on the admission and rejection of testimony, in its instructions, in denying de
As already said, mere knowledge of the defects in a street which is left open for public travel is not conclusive on the question of contributory negligence. It is a circumstance, of course, to be considered by the jury; but, after all, it was for that body to say whether or not plaintiff was exercising the degree of care required of him in passing over the defects. This is not ordinarily a question of law, but of fact, and the testimony was such in this case as to justify the trial court in submitting the matter to the jury.
There is no error of which the defendant may justly complain, and the judgment must be, and it is, affirmed.