Crystal v. City of Des Moines , 65 Iowa 502 ( 1885 )

Beck, Ch. J.

We shall dispose of the objections to the judgment in the order of their presentation in appellant’s-argument.

1.raAOTicEin eourtfeviportverdicE I.. It is first insisted that the verdict lacks support of the-evidence; but the abstract does not show that it contains all of the evidence. On the contrary,. it affirmatively appears that it does not. Under-familiar rules prevailing here, we cannot consider this objection.

2. cities and as'toSstreete: traveller from excavation: evidence. II. The excavation into which plaintiff drove, causing; his injury, was made in the street by the city, for the purpose of putting in a “ catch-basin” connected with the sewer. The excavation, it is claimed, was left without sufficient barriers to prevent teams from being driven into it, and without signal lights. The defendant claimed that it was not in the traveled part of the street. To support this claim, it asked a witness whether he had ££ recently looked at the ground to see if there were-indications of travel on the east side of the 'catch-basin ;’ and also whether there are any indications of any travel at any time; whether the ground shows there was ever any travel by teams.” The witness was not permitted to answer the question.

The accident occurred some months before the trial; and it was not made to appear that a recent examination of the street and its present appearance would reveal the fact that travel of the street did not, at the time of the accident, pass over the spot where the excavation was made. It was not shown that the street was not open for travel its entire width. If so-open, the city was bound to keep it in a reasonably safe condition from sidewalk to sidewalk. Stafford v. City of Oskaloosa, 57 Iowa, 748. It cannot be presumed that it was so-opened. If it was, the city could not, by excavation, temporarily withdraw it from public use, without using proper precaution to prevent travelers in the night-time driving therein. If it had been open to public use for its whole width, it is immaterial whether there was or was not indications of its use to that extent. The evidence was rightly rejected.

III. The court gave certain instructions as to the care to be exercised by the city over its streets, and the precaution to be taken by it to protect travelers passing upon its streets, in which excavations or obstructions are permitted by tbe city. The rules of the instructions are complained of upon the ground that they are inapplicable to the facts of the case. The position of defendant’s counsel in support of this claim of the inapplicability of the instructions is, that the city had a right to erect the “catch-basin,” and is not liable, if^there was no negligence in leaving it in the condition in which it was when plaintiff drove into it. This may be conceded to be correct. But the instructions given are not at all in conflict with the position. They, however, present correct rules to guide the jury in determining whether plaintiff did exercise proper care. These rules counsel for defendant do not question.

IY. The instructions asked by the defendant and refused, present the thought that the city may use the streets for sewers, and attachments thereto, leaving a sufficient space for travel. This may be correct; but it does not meet the case, which is to recover of the city for negligence in not sufficiently protecting travelers from the dangers of the excavation. These instructions were correctly refused.

. The case presents no other questions. The judgment must be Aeeirmed.