Butler v. Incorporated Town of Malvern

Supreme Court of Iowa

Butler v. Incorporated Town of Malvern

91 Iowa 397

CourtSupreme Court of Iowa

DecidedMay 24, 1894

StatusPublished

Cited by1 cases

This text of 91 Iowa 397 (Butler v. Incorporated Town of Malvern) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Butler v. Incorporated Town of Malvern, 91 Iowa 397 (iowa 1894).

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Opinion

Given, J.

1 I. The sidewalk at the point where the plaintiff was injured was upon the right of way of the Omaha & St. Louis Railway Company, commonly called the Wabash, and had been constructed by that company some eight years before the accident. The walk was some distance above the surface of the earth, and was constructed of stringers resting on posts and covered with plank. On July 25, 1891, while plaintiff was passing along that walk, one of the planks, because of being decayed, turned under his foot, letting his leg pass through the opening, and causing him to fall so that he was injured. On the trial, plaintiff introduced in evidence a resolution adopted by the council on January 5, 1891, as follows: “Moved [398]*398and seconded, the mayor and recorder give legal notice to the Wabash,or O. & St. L. R. R. Co., to repair their sidewalks and crossings.” Defendant objected, as incompetent and immaterial, and now complains of the overruling of that objection. One contention in the case was whether the defendant had actual notice of the condition of the sidewalk at the place where plaintiff was injured. While it is true that that particular sidewalk was not mentioned in the resolution, it did include all the sidewalks of that railroad company, and consequently the one in question. Defendant was permitted to prove that the resolution was not passed with reference to this part of the railroad company’s walk. We think there was no error in admitting the evidence, as it tended to show actual notice.

II. Appellant presents as the principal question on this appeal, whether the alleged defect in the sidewalk was of so long standing and so notorious that the defendant must be presumed to have had knowledge of it. In this connection, counsel discuss at great length and with much particularity the evidence relating to that issue. Their argument demonstrates beyond question that there is conflict in the evidence upon that subject. It is not authorized or required that, in this class of cases, we shall, on appeal, retry questions of fact. It is sufficient to say that this question was properly submitted to the jury, and that the jury was warranted by the evidence in presuming that the defendant had knowledge of the defective condition of the walk. We discover no errors in the record, and the judgment of the district court is therefore affirmed .

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Given, J.

1 I. The sidewalk at the point where the plaintiff was injured was upon the right of way of the Omaha & St. Louis Railway Company, commonly called the Wabash, and had been constructed by that company some eight years before the accident. The walk was some distance above the surface of the earth, and was constructed of stringers resting on posts and covered with plank. On July 25, 1891, while plaintiff was passing along that walk, one of the planks, because of being decayed, turned under his foot, letting his leg pass through the opening, and causing him to fall so that he was injured. On the trial, plaintiff introduced in evidence a resolution adopted by the council on January 5, 1891, as follows: “Moved [398]*398and seconded, the mayor and recorder give legal notice to the Wabash,or O. & St. L. R. R. Co., to repair their sidewalks and crossings.” Defendant objected, as incompetent and immaterial, and now complains of the overruling of that objection. One contention in the case was whether the defendant had actual notice of the condition of the sidewalk at the place where plaintiff was injured. While it is true that that particular sidewalk was not mentioned in the resolution, it did include all the sidewalks of that railroad company, and consequently the one in question. Defendant was permitted to prove that the resolution was not passed with reference to this part of the railroad company’s walk. We think there was no error in admitting the evidence, as it tended to show actual notice.

II. Appellant presents as the principal question on this appeal, whether the alleged defect in the sidewalk was of so long standing and so notorious that the defendant must be presumed to have had knowledge of it. In this connection, counsel discuss at great length and with much particularity the evidence relating to that issue. Their argument demonstrates beyond question that there is conflict in the evidence upon that subject. It is not authorized or required that, in this class of cases, we shall, on appeal, retry questions of fact. It is sufficient to say that this question was properly submitted to the jury, and that the jury was warranted by the evidence in presuming that the defendant had knowledge of the defective condition of the walk. We discover no errors in the record, and the judgment of the district court is therefore affirmed .

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91 Iowa 397, Counsel Stack Legal Research, https://law.counselstack.com/opinion/butler-v-incorporated-town-of-malvern-iowa-1894.

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