Parker v. City Ottumwa

113 Iowa 649 | Iowa | 1901

Shekwin, J.

1 The petition alleges that the defendant had both actual and constructive notice of the unsafe condition of its walk at the place where the plaintiff was injured long before and at the time the accident happened. Witnesses were permitted to testify as to this condition, and of this the defendant complains. It does not appear that an exception was taken to the ruling of the court on the motion to strike the answer of the witness Graham, but, regardless of this, the evidence was properly received. Smith v. City of Des Moines, 84 Iowa, 685; Hunt v. City of Dubuque, 96 Iowa, 314; Wilberding v. City of Dubuque, 111 Iowa, 484. „

2 A witness for the plaintiff on his examination.in chief ivas asked whether he had noticed repairs in the sidewalk before or after the accident. He answered that he had “seen where they took pieces and nailed them down.” The question "was then objected to, and the-objection overruled. Tbs witness then went on and answered where he had seen the repairs, and that it was after the accident. A similar objection was made after the answer was in, which was overruled, but no exception taken to the ruling. An objection to a question after the answer is in is ordinarily too late, and is of no avail. Leipird v. Stotler 97 Iowa, 169. The answer to the first question did not specifically disclose when the repairs were noticed by the witness. When he answered afterwards that it was after the accident, no exception was taken to the ruling of the court thereon; hence we cannot consider it.

3 The defendant offered evidence tending to show that the sidewalk was in good repair before, at, and after the time of plaintiff’s injury. In rebuttal the plaintiff was permitted to prove that repairs had been made at and and near the place in question after the accident. This evidence was clearly competent, as tending to refute the defendant’s claim. There was alsoievidence tending to show that the walk had been in an unsafe condition long before the plaintiff was hurt, and continued so for some time thereafter.

4 Plaintiff’s attending physician was permitted to testify that she was pregnant when injured, and that the labor of childbirth necessitated movement of the injured knee, and consequent great pain. It is urged that this evidence should not have been received, because no special damage on account of pregnancy.was pleaded. This was not necessary. It was alleged that the injury caused great pain and suffering, and her physical condition at the time thereof was proper for the jury to consider in determining its extent.

Lastly it is said the verdict is not supported by the evidence. With this we cannot agine. The evidence is in conflict on all material matters, except, perhaps, the question of the defendant’s knowledge that the walk in question needed constant supervision and repair, and'this is clearly shown by even its own witness. The judgment is aeeirmed.