40 Iowa 638 | Iowa | 1875
The court gave the following instructions:
“ 1. It is the duty of the City of Des Moines to keep such streets and sidewalks as are constructed in the same for the convenience of passers and foot travelers open and in repair and free from nuisances. And if the evidence satisfies the j ury that the sidewalk, as alleged in the petition of plaintiff, was out of repair or improperly constructed, and in such condition as to render passers over the same liable to fall or otherwise get injured, and that in consequence thereof the plaintiff in passing over the same without negligence or imprudence on his part which contributed to the injury complained of, the jury will find for the plaintiff.
“2. If the jury find from the evidence that the injury complained of was suffered, and that it was occasioned by a fall upon the sidewalk, as charged in the petition of plaintiff, and that the sidewalk in the place where the fall occurred was in an unsafe and dangerous condition for the passage of travelers on foot, and that the accident occurred in consequence of •such unsafe condition of the sidewalk, and that the plaintiff could not have known and guarded against the damages by the use of ordinary care and prudence, then the jury will find for the plaintiff, if they find that the negligence of plaintiff did not contribute to the injury:
“ 4. If the jury find from the evidence that the plaintiff was injured by the defective sidewalk in the street of the defendant, without negligence on his part, it is not necessary, in order to entitle the plaintiff to recover, that he should prove actual notice of the defect to the city, if the same was the*640 result of the construction by the defendant, or if the defect was notorious and had remained so for a sufficient length of time to enable defendant, by reasonable diligence, to know of its existence and repair the same.
“5. That if the sidewalk was properly constructed, and afterward became out of repair, then defendant would not be liable, unless you find it had notice of such defect. But actual notice need not be proved in all cases. It may be inferred • from the notoriety of the defect or danger, from its continuance for such a length of time as to lead to the presumption that the proper officers did in fact know, or with proper diligence might have known, the same.”
Appellant assigned the giving of each of these instructions as error.
The objection urged to the first and second instructions is that they authorize a recovery against the defendant without proof, actual or implied, that the city knew of the defective condition of the sidewalk.
Appellant’s counsel concede that if the sidewalk was originally improperly constructed the city would of necessity have notice.
But they claim that if the sidewalk had been changed, or had become dangerous by accidental causes, or by the acts of any one else than the defendant, the defendant would not be liable until it had notice of the existence of the defect. It is conceded then that these instructions- are applicable to a certain state of facts, and that as to them the instructions are not erroneous. Now, we have nothing in the record to show that the facts proved were not precisely those under which it is conceded these instructions are proper. In other words, we have nothing to show that the defect was not in the original construction. We'have none of the evidence in the record, touching the defendant’s negligence. Error will not be presumed; it must be made to appear affirmatively. '
Besides, in the fifth instruction the court directed the jury “that if the sidewalk was properly constructed, and afterward became out of repair, then defendant would not be liable unless you find it had notice of the defect.”
The fifth instruction evidently limits those which we have before considered. The jury could not have concluded from the instructions taken together, that if the sidewalk was properly constructed, and afterward, from any cause, became out of repair, the city could be held liable without notice of the condition of the sidewalk.
Complaint is made of all that part of instruction number four, which is as follows: “ Or if the defect was notorious,
The italics are ours. The instruction, exclusive of the italics, was asked by the defendant. The italicised portion is the modification added by the court. Appellant claims that the instruction should' have been given as asked, and that, as modified, it is erroneous. The instruction as asked denies relief to a party who goes upon a defective sidewalk, with knowledge of its condition, no matter what his necessities may be. If all the sidewalks are known to be out of repair, he must never leave his home, nor return to it from abroad, unless he is willing to assume all the risks of injury from such defect.
All, then, that a city need do to escape its obligation to keep its sidewalks and streets in repair would be to notify its inhabitants that the streets and sidewalks are in an unsafe condition.
It has been held that one who is injured upon a street which he knew to be dangerous, needs not show that he exercised extraordinary care. Hanlon v. The City of Keokuk, 7 Iowa, 488.
A fortiori he cannot be denied relief simply because he goes upon a street which he knows to be dangerous, for if that defeats his remedy, he cannot recover even with the exercise of extraordinary care.
III. The defendant complains of the giving of the follow'-ing instruction:
“ 10. If the jury find for the .plaintiff, you will assess such damages as the evidence shows the plaintiff is entitled to under4. damages: city: personal injury- the circumstances, taking into account his loss of , . . time m effecting a cure, and Ins expenses m respect thereof, the loss to him sustained by not being able to attend to his business by reason of said injury, the pain*643 and suffering endured, and any permanent or continuing injury received, considering tbe age of plaintiff and bis expectancy in life. You will also take into consideration in fixing tbe amount of your verdict, tbe physician’s or surgeon’s bill incurred on account of said injury, and any other expense for medicine and nursing that may have been incurred.”
To tbe first part of this instruction it is objected that tbe direction to the jury to assess such damages as tbe evidence shows tbe plaintiff is entitled to under tbe circumstances, permits them to take into consideration tbe circumstances connected with tbe sidewalk’s being out of repair, and to consider them as an element of damage, and to give damages beyond tbe actual injury sustained; in other words, that it authorizes the jury to award exemplary damages. Tbe instruction, we think, is not vulnerable to tbe objection made. From tbe specifications of tbe circumstances to be. considered, which the instruction contains, it is evident that the court bad in view tbe circumstances surrounding tbe plaintiff, and tbe injury which be received, and not those connected with tbe condition of tbe sidewalk. It is not at all probable that a jury would suppose this instruction permitted them to allow exemplary damages. •
Besides, we have not tbe evidence showing under what circumstances the sidewalk was out of repair. Even if tbe jury considered them, we have no warrant for saying they were such as to aggravate tbe damages. They may, upon the contrary, have been of a character to mitigate tbe damages. Even if the instruction was objectionable, appellant has not shown any prejudice.
Appellant also objects to tbe portion of this instruction which permits the jury to consider plaintiff’s expectancy in life. It is discussed by appellant as though the language employed was expectancy of life. The two phrases express quite different ideas. Expectancy in life evidently means one’s probable employments, circumstances, conditions, etc., during his life. Expectancy of life means the probable duration of life. Expectancy in life embraces all reasonable pros
IY. Tiie defendant asked the court to give the following instruction: 11. “And if you find from the evidence that
V. Appellant also assigns as error the refusal to give several other instructions asked. The points which they involve are not sufficiently -important to merit extended consideration. Many of these instructions are not shown to be at all appli
YI. In order to show his capabilities before the injury, plaintiff was permitted to prove what he had earned per year,
YII. Dr. ~W. S.'Grimes, a witness for plaintiff, described the injury to plaintiff’s ankle, its condition at the time of trial,
The ruling was right. It would not explain, limit or modify the testimony in chief to show that the iimb had not been properly treated. There was an opportunity to introduce this witness for the defense, if his testimony on this subject was desired.
Till. The defendant, as an amendment to the answer,'
IX. The only remaining point made is that the verdict is excessive. The evidence, shows that the injury to plaintiff’s ankle is of a serious character. Up to the time of trial, a period* of nearly two years, it had continued to be at times quite painful. The lateral motion of the foot is gone. The injury is probably of a permanent character. Plaintiff is lame, and is likely to remain so. From a review of all the testimony, we cannot say that the verdict indicates passion or prejudice, or that it did not result from a careful, deliberate and intelligent weighing of the evidence submitted.
We cannot, therefore disturb it. The judgment is
AFFIRMED.