61 Iowa 103 | Iowa | 1883
The court very correctly appreciated that the evidence of the condition of the walk in the spring of 1880 was not admissible for the purpose of showing the general negligent character of the defendant as rendering it a proper subject of punishment. It undertook to apply the evidence to a proper object, and to prevent the jury from making any other application.
It often happens that evidence is admissible for one purpose, and no other, and is of such a character that there is danger that it will not be restricted in its application to its legitimate object. Where this is so, it cannot be excluded. The most that the party can require, against whom it is admitted, is, that the jury shall be properly cautioned. We
It is not to be denied, we think, that the defective condition of a sidewalk at the time of an alleged accident may sometimes be shown by showing its condition at a subsequent time. A sidewalk shown to be badly decayed on a given day could hardly be supposed to be sound the day or week previous. There are other defects which might be of such a character as to indicate that they had existed substantially for a considerable length of time. But where the time is such that the evidence in respect to the subsequent defective condition would more probably lead to a wrong inference than a correct one, it ought jot to be admitted.
The accident is alleged to have occurred by reason of the fact that a certain board or plank was loose, and tipped up, and caused the plaintiff to fall. It is not shown whether it had become loose by reason of decay, or becoming broken, or unnailed. But it will be seen at once, that to whatever cause the defect might be due, the condition of the board or plank in the spring of 1880 would afford a very unreliable indication of its condition the September j>revious.
But there is another view which shows clearly to our minds that the testimony of Blackwood could have had no effect except to operate upon the prejudices of the jury. He had already, before the objectionable testimony was admitted, described the walk as it was in 1878 and 1879. Pie had covered the entire ground, so far as his testimony could go. Pie could add nothing to it that was proper to be added, by stating that the walk was in about the same condition in the spring of 1880. The substance of his testimony, taken together, was that the walk was bad at and before the time of the accident, and remained so six or seven months longer. If the walk was bad at the time of the accident, it was of no importance how long it remained so. Nor could the witness corroborate
Possibly it might be thought that the witness’ testimony might be taken in connection with the evidence that the walk was repaired by the town in the spring of 1880. The court below seemed to think that the fact that the sidewalk was repaired was some evidence that it needed repairing. Now, if it needed repairing in the spring of 1880, and was in the same condition at the time of the accident, it cannot be denied that it needed repairing at the time of the accident. But, in our opinion, this whole subject of repairs in 1880 was foreign to the case. Making repairs at tliat time could have no significance except as an admission. Without going into the question as to whether a municipal corporation can make admissions in this way, it is sufficient to say that the admission Would be only that repair's had become expedient. It would not be an admission that the sidewalk had become dangerous. Sidewalks are repaired partly in anticipation of their becoming dangerous, and partly to improve their convenience and appearance. Nothing more than that is necessarily indicated in regard to the motive for repairs. But the fact is not an admission even that it was expedient to repair earlier than the repair was made. Suppose the sidewalk did appear to be about the same. It was certainly six or seven months older, and it is shown that it was an old sidewalk.
The plaintiff contends that the testimony of Blackwood as to the walks remaining in the same condition after the accident was, if improperly admitted, without prejudice, because the defendant had proven the same fact.
Some of the defendant’s witnesses spoke of the repairs m the spring of 1880. We do not find that the defendant proved that the sidewalk was in the same condition as .at the time of the accident.
In admitting Blackwood’s testimony, and similar testimony,
The plaintiff had testified that the evening was dark, and that she knew that the walk “was in a terrible bad condition.”
In view of this evidence it appears to us that the defendant was entitled to this instruction.
The court, it is true, gave an instruction on the subject of contributory negligence. The jury was instructed that before the plaintiff could recover “she must show that she did not, by her negligence, contribute proximately to the original injury;” that “in using the walk she was held to the exercise of ordinary care;” that “if she knew of the hole in the walk, and of its decayed condition, then in passing over it she would be required to use the ordinary caution of persons under similar circumstances, with like knowledge.”
But, if the plaintiff knew that it was imprudent to go over the walk, and there was another one by which she could have reached her destination, she was not excusable, we think, in attempting to walk cautiously over it in the darkness, but should have taken the other walk, and the jury should, we think, have been substantially so instructed as defendant asked. •
The defendant was, we think, for another reason, entitled to have given the instruction asked. The one given, intended to cover the ground, was not as clearly intelligible to the nonprofessional mind. The jury w^s instructed that the plaint
Several other questions are presented which we do not determine. Most of them, probably, will not rise upon another trial, and as to the others we might not be agreed. Eor the errors pointed out the judgment must be
Reversed.