142 Iowa 580 | Iowa | 1909
Lead Opinion
The plaintiff was a resident of the defendant city. On February 26, 1907, she claims to have fallen upon one of the sidewalks by reason of a loose board thereon. The claim is that her grandson, who was walking at her side, stepped upon one end of the board, whereby the other end was thrown ~up against the plaintiff in such a way as to cause her to fall. It is claimed that she
It will be observed that the instruction under consideration, through probable oversight, falls short of stating the Greenleaf rule. As set forth in the Martin case, supra, the following should have. been added: “But when such admissions are deliberately made or .often repeated, and are correctly given, they are often the most satisfactory evidence, and the jury should consider all the circumstances under which they were made and give them such weight as they are justly entitled to receive.” This latter proviso gives a proper balance to the rule. An instruction substantially in the form of the one under consideration was condemned by this court in Hawes v. B., C. R. & N. Ry. Co., 64 Iowa, 315. See, also, Castner v. Railway Co., 126 Iowa, 586. The natural effect of the court’s instruction as given was to minimize unduly the testimony of the defendant on the subject referred to, and this is especially so in view of the fact that the plaintiff neither denied the statements attributed to her, nor denied recollection of them, nor offered any explanation.
Other questions argued by counsel are not such as are likely to arise upon a new trial.
Bor the error pointed out in instruction 12.%> the judgment below must be reversed.
Dissenting Opinion
(dissenting). — The first instruction condemned was concededly right so far as it went, and, if counsel desired a more complete'statement of its limitations, it was an easy thing to request it. Not having done so, I think there was no error. Concerning the other instruction mentioned, I am of the opinion the “defect” complained of was of such character that an omission to state in specific terms the general rule as to the city’s duty in
I therefore dissent from the conclusion announced by the majority.