Lindsay v. City of Des Moines

68 Iowa 368 | Iowa | 1886

Rothrook, J\

I. In the instructions given to the jury, after stating the cause of action', in substance, and the defense thereto, the court used this language: “For a more precise and exact statement of the allegations of the parties, and the issues in the case, see the pleadings themselves. * * *” We held in Bryan v. Chicago, R. I. & P. R’y Co., 63 Iowa, 464, that a direction to the jury in this precise language was erroneous. In that case, as in this, the court prefaced the objectionable direction to the jury by quite a full statement of the substance of the averments of the petition and answer. It was held, following quite a number of other cases, that it was error to refer the jury to the pleadings to determine the issues. It is due to the court below to say that this cause was tried before Bryan’s Case was decided by this court.

II.. As the judgment must be reversed for the error above ■ pointed out, it is proper to say in view of a new trial that we think the court should not have allowed the defendant to prove that there are over 150 miles of sidewalk in the city of Des Moines; and the jury ought not to have been instructed that the “ extent of sidewalk in the city which has to be looked after may be considered ” in deciding whether the city officers used proper diligence in removing the snow and ice. It appears to ns that the care and diligence required to keep sidewalks in proper condition cannot be affected or varied by the number of miles of walk in the city. If labor is necessary for the purpose, the force should be commensurate with the work to be done. In other words, a city with 40,000 inhabitants and 150 miles of sidewalk should be held to the same degree of care in this respect as the smaller towns with less extent of sidewalk.

Eeversed.

Seevees and Eeed, JJ., dissent from the last point in this opinion.