Morman v. City of Emmetsburg
195 Iowa 627
Iowa
1922
Check Treatment
Evans, J.

On December 11, 1920, the plaintiff was injured by a fall of his horse upon one of defendant’s streets, known as Grand Avenue. The street was recently paved, and was ap-. parently in a perfect condition. The plaintiff was riding his *628horse upon it shortly before daylight on a frosty morning. His evidence tended to show that, while his horse was lоping at a moderate pace, the horse was suddenly thrown by the tipping' of a cover of a manhole upon which he had stepped. As a result of the fall, plaintiff was seriously injured. The manhole cover was defectively fitted into its place, so that it had frequently been displaced by the passing of vеhicles over it. This condition was known to the city officials. It was not known to the plaintiff. No question is raised as to the amount of the verdict. The appeal is submitted here upon six errors assigned:

1. That the evidenсe was insufficient to show ‍​​​‌​​‌​‌‌‌‌‌​‌‌​‌‌​​​​​​‌​‌‌​‌‌​‌​‌​‌‌​​‌​​​​​‌‍that the manhole cover was defective.

2. That the evidence was insufficiеnt to show that this defect was the cause of the accident.

3. That the evidence was insufficient to shоw that the city officials were negligent in respect to such manhole.

4. That the plaintiff was guilty of contributоry negligence as a matter of law, ‍​​​‌​​‌​‌‌‌‌‌​‌‌​‌‌​​​​​​‌​‌‌​‌‌​‌​‌​‌‌​​‌​​​​​‌‍and that a verdict should have been directed for the defendаnt on that ground.

5. That the court erred in sustaining objections to certain evidence offered by the defendant tending to show that a safer route was available to the defendant, and that he failed to takе the same.

6. That the court erred to the prejudice of the defendant in that he made the following stаtement to defendant’s counsel in the presence of the jury:

“What did you build your pavement for, if you ‍​​​‌​​‌​‌‌‌‌‌​‌‌​‌‌​​​​​​‌​‌‌​‌‌​‌​‌​‌‌​​‌​​​​​‌‍did not expect people to ride over it Í ”,

The errors thus assigned present elementary questions. We sеe nothing to be gained by an extended discussion of any of them.

As to the first three errors assigned, an examinаtion of the record satisfies us that the evidence was abundant to warrant a submission to the jury. The only infirmity in the evidence in that regard is that it was to some extent circumstantial, as to the immediate circumstances of the accident. The plaintiff’s injury resulted in unconsciousness on his part. He testified directly to the circumstances leading up to the accident. He tes*629tified also that he heard the click of the horse’s hoofs upon the metal cover of the manhole. This was the last circumstance to which he was able to testify. No other person was an eyewitness to the accident. Observers came soon to the rescue of the plaintiff. The testimony of these disclosed the condition of the cover of thе manhole immediately after the accident. It was tilted out of position. The circumstances shown warranted the finding of the jury that its insecure condition had been ‍​​​‌​​‌​‌‌‌‌‌​‌‌​‌‌​​​​​​‌​‌‌​‌‌​‌​‌​‌‌​​‌​​​​​‌‍the cause of the fall of the horse. It is without disрute in the record that this particular cover had been replaced repeatedly by city оfficials, following its displacement by the public travel thereover. The condition thus created rendered it imminently dangerous to all travel, and especially to the travel of horses. The excellent сondition of the street in other respects naturally attracted travel, which only increased the сhances of accident by reason of this particular defect.

As to the fourth error assigned, it would be difficult to say that the record discloses any evidence of contributory negligence; much less that it disсloses such negligence conclusively as a matter of law.

As to the remaining errors, it is made to appear that the defendant introduced certain evidence and offered more, to the effеct that the plaintiff could have taken a parallel street, which would have enabled him to avoid the manhole in question. This evidence was rejected as immaterial. Defendant offered no evidеnce that the plaintiff knew of the dangerous condition of the manhole in question, or that he knew of аny danger upon the street in question, or that the other street was any safer. On the contrary, the other street was an unimproved street,'and had its own defects, as appeared from the evidence. In the absence of knowledge by the plaintiff of the defective condition of the street upon which hе was traveling at the point in question, he was under no obligation to seek another avenue of travel. He would naturally select the best and the most attractive to travel. The evidence offered at this point was clearly immaterial.

*630*629In ruling upon this offer, the trial court made the remark quoted ‍​​​‌​​‌​‌‌‌‌‌​‌‌​‌‌​​​​​​‌​‌‌​‌‌​‌​‌​‌‌​​‌​​​​​‌‍in the sixth error a’ssigned, as above set forth. No ob*630jection was made nor exception taken to this remark at the time, nor was any complaint thereof ever made to the trial court. No claim was made to the trial court that the remark was prejudicial, so far as disclosed by the record. No new trial was askеd for on. account thereof. This of itself is sufficient to forbid the defendant from now asking for a reversal on such ground. Whether under any circumstances the remark could have been prejudicial, we need not consider. The judgment below is, accordingly, affirmed. — Affirmed.

Stevens, C. J., Arthur and Faville, JJ., concur.