187 Iowa 60 | Iowa | 1919
Needless to say that the opinion on the first appeal has become the law of the case. The main question for our consideration is whether the evidence on the second trial
At the first trial, the nature and extent of the defect in the sidewalk was gone into fully. Plaintiff introduced several witnesses who testified to their estimates of the extent of deterioration, and of the depth of the depression. Photographs had been taken, and three of these were introduced in evidence by the plaintiff. The same photographs have been introduced in evidence on the second trial. At the former trial, plaintiff’s witnesses estimated the extreme depth of the depression in the defective section to bo from 2 to 3 inches. At the second trial, the plaintiff pro duced additional witnesses, some of whom estimated the depth at from 3% to 4 inches. ■ These were estimates only, and based wholly upon the present recollection of observations made more than three years prior. The estimates given by the additional witnesses were as follows: Downey, “3 inches;’’ Horsely, “3 to 3% inches;” Roll, “3 to 4 inches;” Mrs. Roll, “perhaps 3% inches;” Coats, “at that time at the west end the grouting was out clear to the cinders. The top coat in the grouting was about 3y2 or 4 inches ’ thick.”