193 Iowa 243 | Iowa | 1922
— On a prior appeal of this case, a judgment upon a directed verdict for the defendant was reversed, and it. was held that the case was one for the jury. Kiple v. Incorporated Town of Clermont, 188 Iowa 248. The facts are quite fully set out in the opinion on that appeal. The evidence is practically the same on this appeal. ~We tliink the questions now presented are, for the most part, ruled by the first decision.
The petition alleged that plaintiff was struck and cut across and upon her eyes, nose, and forehead; that her left wrist was severely sprained; that she was severely and seriously injured and bruised upon her right leg, on her left arm, upon her right
In addition to the allegations before set out, the petition alleged, perhaps a little more specifically as to some of these, that her right ankle was seriously and severely injured, and the ligaments connected therewith torn out; that the structures, flesh, and muscles at and about said right ankle were strained, bruised, and lacerated; and that plaintiff was severely and seriously shocked and hurt by being struck by said wire. There is no material variance; and surely, such as there was, if any, could not mislead the jury or prejudice the defendant.
It may be well at this point to refer to the language used in the opinion on the former appeal. It^ was said, at page 251:
*247 “It was the duty of the town to exercise reasonable care to have and to keep its streets in a reasonably safe condition for travel. It was not reasonably safe for travel at the time of the injury. If we assume that the town did not know of this condition, or if we assume, as a matter of law, that the condition that caused the injury had not existed for sufficient time to charge the town with notice, we turn then to a consideration of the causes which led up to and produced the condition which rendered the street admittedly unsafe. * * * If the defendant permitted the original condition to exist, and, in the exercise of reasonable care, should have anticipated the consequences that might and did follow, then it cannot be heard to complain that it did not have notice that consequences reasonably to be expected did follow; for it is held to know that which it could have anticipated by the exercise of reasonable care, and could, by such care, have anticipated and guarded against.”
The matters referred to in the quotation were submitted to the jury on the last trial, and the jury was told, in effect, that, if the defendant did not have constructive notice, as explained in the instructions, the verdict should be for the defendant. Furthermore, defendant offered instructions in which it asked the court to instruct the jury on constructive notice to the town. Appellee contends that, by so doing, defendant waived any right to raise that question in this court. It seems unnecessary to pursue the subject further.
3. Instruction No. 6, of which complaint is made, is as follows:
4. Municipal corporations: streets: erection of banners. “You are instructed that, if the defendant town permitted the use of said Union Street for the erection and placing of said banner upon said wires, and said wires upon the poles, it was the duty of said town, at all times thereafter, to take notice and guard against the ordinary action of the wind and elements upon and against said banner, wires, and poles, so as to keep the said street in a reasonably safe condition for travel, and to use reasonable care in anticipating and guarding against the effect of the ordinary action of the wind and the elements upon and against said banner, wires, and poles.”
“The jury could well find that the injury followed as a proximate result of a condition known to the town, and permitted to exist for more than four days before the injury. When it permitted the use of the street, it was bound to take notice and guard against the action of the elements upon the thing which it permitted to exist, and it was for the jury to say whether or not, in the exercise of reasonable care for the safety of the traveler upon the street, in the discharge of that duty which it assumes, to keep its streets in a reasonably safe condition, it should have anticipated and guarded against the effect of the action of the elements on the thing which it permitted to exist. The record here presented malees it a pertinent matter for jury inquisition, and the court erred in not submitting it to them. ’ ’
This instruction does not, as contended by appellant, make the defendant an insurer, but simply defines the duty of the town to use reasonable care in anticipating and guarding against the effect of the ordinary action of the. wind, etc. The duty of the town was more fully explained in other instructions, and the jury was told that the town was not an insurer. As said, the mayor of the town was one of the parties who originally put up the banner. Notice to him was notice to the town of the conditions then existing. We think the instructions as a whole are fully as favorable to the defendant as it had a right to expect. Some of the questions now presented were presented on the former appeal, and as to them, they are foreclosed by the-former opinion. As bearing somewhat upon the question of notice, see the very recent case of Spiker v. City of Ottumwa, 193 Iowa —.
There is no prejudicial error, and the judgment is— Affirmed.