195 Iowa 1002 | Iowa | 1923
There is a conflict in the evidence at some points. The evidence tends to show, and the jury could have found therefrom, that, on July 12, 1919, defendant Cannon owned a lot on the east side of Shakespeare Street, in defendant town. It is the main business street-of the town, and Cannon’s
Separate appeals have been taken by each of the three defendants, and three separate arguments have been filed. The errors assigned and the brief points, with numerous subdivisions, number a hundred or more. Some of these are repetition, some are without merit, some are technical, some do not comply with the rules, and others are not argued. The gist of all of them may be summed up in the following propositions, which seem to be controlling.
1. It is unnecessary to take any space to discuss the question of negligence of the defendants. Clearly, it was a question for the jury.
2. Likewise, the question of plaintiff’s alleged contributory negligence was for the jury. A finding by the jury either way would have sufficient support. The court could not say, from the record, that plaintiff, as a matter of law, was guilty of contributory negligence.
3. The evidence is ample, under all the circumstances, to show constructive notice to the town, and in time to have remedied the defect by erecting barriers or a light, or both. Indeed, the jury could have found that the town had actual notice. Defendant Franksain did the work, and knew the conditions, and knew that he left the ditch unprotected. The principal, Cannon, likewise is shown to have known of the situation.
4. Appellants contend that there is no joint liability, and that the suit may not be so maintained against them. The question was raised by motion, demurrer, plea, motion to direct, requested instructions, and exceptions to the instructions given. The thought m the argument is that each defendant is responsible only ior the damage done by him. A duty is enjoined upon the town to use ordinary care to keep its streets in a reasonably safe condition for travel, and this is so whether the dangerous condition is created by the town itself or by others. The other defendants could not lawfully dig, or cause to be dug, a pit that would be dangerous to the traveling public. In
5. Defendant Cannon pleaded that Franksain was an independent contractor’, and that he, Cannon, was not liable for Franksain’s act) while Franksain pleaded that he was only the employee of Cannon, and was, therefore, not liable. The undisputed evidence shows, we think, that Franksain was not an independent contractor. When Cannon employed Franksain, the latter thought at first that he could not do the work Saturday, the 12th, and Cannon claims that he suggested that he had better not do it until Monday. Later, Franksain concluded to do the work Saturday, and Cannon saw the work being done, and assented thereto. There was nothing in the agreement, nor is there anything in’ the evidence, to the effect that Franksain was to do the work according to his own method, and not subject to the control of Cannon. Bodwell v. Webster, 98 Neb. 664 (154 N. W. 229); Sylcord v. Horn, 179 Iowa 936, 943; Goodwin v. Mason & Seabury, 173 Iowa 546, 550. Furthermore, as to the public, Cannon owed the duty of using proper care to see that the excavation was reasonably safe. Frisbee v. Hawkeye Land Co., 170 Iowa 540, 544.
7. It is thought by appellants that the court erred in permitting the testimony of witnesses Flosame and Cane as to their falling into the ditch. It is perhaps unnecessary to refer further to the evidence on that point, except to say • that they described the conditions surrounding-the ditch, and what they saw; and it would have been somewhat difficult, perhaps, to have stated what they properly testified to, without stating that they fell in. But at any rate, this Avas about the time plaintiff fell in, if, indeed, it was not before. The proposition is ruled by Hall v. City of Shenandoah, 179 Iowa 1192.
We Avould not be justified in specifically noticing other-points. We have carefully gone through the record; and discover no prejudicial error as to defendants other than Franksain. The judgment is affirmed as to defendants town of Stratford and Cannon; reversed as to defendant Franksain. ■