Bartle v. City of Des Moines , 38 Iowa 414 ( 1874 )

Cole, J.

i. municipal indebtedness stttutionai11" limit. — I. The amendment to the answer set up that at the time of the alleged injury, and long prior thereto, the defendant was indebted beyond the limit allowed ^7 ^113 constitution, and had no money or means unappropriated with which -to make sewers and drains and grade the streets, arid for that reason the streets were not all graded nor the drains and sewers all made. These facts constitute no defense, for that the action is not instituted to recover for a failure to grade the streets or to make gutters, but for doing the grading and making the gutters in a careless, negligent and 'imskillfwl manner. The amendment does not aver, that at the time the action was commenced, or at the time the amendment was filed, the defendant had no money or the means of raising it so as to pay off the plaintiff’s claim.

II. The plaintiff was permitted, during the course of the trial, and against the defendant’s objections, to ask a witness whether the culvert and a gutter near the plaintiff’s premises were of sufficient capacity to drain the streets they were intended to drain. The answers tended to show that they were not properly constructed and were partly full of dirt and other obstructions. It is claimed by the appellant’s counsel here, that the evidence was improperly admitted, because the city officials exercised their best judgment in regard to the size and capacity of the culverts and gutters; and that a municipal corporation is not liable in damages for an error of judgment by its officers acting in a judicial capacity.

2. jsvidtwoe : questions: competency of answer, The correctness of the counsel’s position as to the law, may be conceded here, without disturbing this judgment. Even if the questions w'ere improper, they did no harm or prejudice to the appellant; and the answers , r '' , , .. tend only to show carelessness, negligence, or unskillfulness in putting them in, or in allowing them to partially fill and thus obstruct the water. Besides this, it was very proper for the jury to have all the facts connected with the place and its surroundings, including the capacity of the .culverts and gutters. No claim is made by the jietition, or upon the evidence, for the want of the capacity, but only for the negligence, etc., in constructing them and allowing them to remain out of proper condition.

3. practtcje : instructions i exception to. • III. The defendant asked the court to give to the jury five “ instructions, which were refused by the court and excepted to by defendant.” It is here insisted by appellee’s x x counsel that this general exception raises no question for us to determine. This is doubtless true under Davenport G. & C. Co. v. The City of Davenport, 13 Iowa, 236; Whicher v. Leonard, Ib., 336; Brown v. Jefferson County, 16 Iowa, 343; Shepherd v. Brentan, 20 Iowa, 43; Redman at al. v. Malone & Cloud, 23 Iowa, 296, and * other cases. But we may refer to one or two of the instructions, to show that appellant'loses nothing by the rule. The instruction numbered eight, as asked, says to the j ury that they must find for the defendant, if the plaintiff’s lot was below grade, and such fact contributed to the injury, and there had a reasonable time elapsed before the injury after the street had been filled. The instruction wholly omits the idea that if plaintiff could have prevented the injury at a moderate expense, or by ordinary efforts. Simpson et al. v. The City of Keokuk, 34 Iowa, 568. The seventh instruction told the jury to find for the defendant if the plaintiff’s cellar wall was built in an insufficient manner, and such insufficiency contributed to the injury. The wall may have been sufficient to support the house, and not sufficient to resist a flood negligently turned upon it;- but this latter fact would not defeat the plaintiff’s recovery. The only true question in this connection was, had the plaintiff exercised ordinary care. The second and sixth were in effect given by the court; and the third was inapplicable.

The abstract further shows that “the court, upon the request of plaintiff, gave the following instructions, (four in number), to the jury, to which the defendant excepted.” And also, that “ the court further gave the following instructions, (seven in number), on its own motion, to which the defendant excepted.” Upon the authority of the cases cited, supra, this general exception raises no question for us to determine — there being no claim that all of either series were erroneous.

4 evidence • pieaciing: statement. IY. The plaintiff claimed damages for the injury to, and loss of potatoes, apples, and family stores in the cellar. ■ The does n°t specify the items, and the defendant for that reason objected to the evidence showjng the items and value of the family stores, etc-The evidence was properly' admitted.- The defendant should have moved for a more specific statement of the items in the petition, if he desired, in advance of the evidence, information as to what the items were.

The evidence sufficiently sustains the verdict.

Affirmed.