Holmes v. City of Hamburg , 47 Iowa 348 ( 1877 )

Day, Ch. J.

i. municipal buágesfdamages. I. The plaintiff offered to prove that defendant had' reconstructed and repaired the bridge after the injury complained of for the purpose of proving that the bridge was a city bridge, recognized by the city to be under its care and supervision. Upon defendant’s objection this testimony was excluded. This action of the court is assigned as. error. The ruling was proper. The conduct of the city after the injury was not admissible to show the relation of the city to the bridge at the time of the injury.

2 _.__. • II. The court in substance instructed that if the bridge in question was situated on one of the public streets of Hamburg it was the duty of defendant to keep, it inreasonably and ordinarily good repair. Appellant insists that the court should have instructed that it was defendant’s duty to keep the bridge in repair, as provided in section 527 of the Code. The defendant, however, cannot be held liable unless it was guilty of some negligence. ' It cannot be claimed that the defendant was guilty of negligence if it kept the bridge in reasonably and ordinarily good repair;' absolute perfection of condition is not required.

III. It seems from the instructions, although none of the evidence is set out in the abstract, that the colt when injured was following a mare ridden by plaintiff’s son. It is objected that the court should have instructed that the care required of plaintiff’s son should be such only as is usual among children of his age.' A sufficient answer to this is that the record nowhere shows the age of plaintiff’s son; for aught that the record shows he was an adult.

IY. The court instructed “that if plaintiff permitted his son to ride across said bridge on his mare with the colt following after her, knowing the bridge to be unfit and dangerous for the purpose of crossing, and the injury occurred by reason of plaintiff’s son crossing the bridge and permitting the colt to follow, the defendant is not liable in this action.” - An objection- is urged to this instruction based upon the notion that the word permit is used in its passive sense of neglecting or failing to prevent, and it is said the plaintiff’s son may have been at such a distance that it was beyond his power to prevent the crossing. It is apparent, however, that the word permit is here used in its active sense of allowing or giving leave to his son to ride across the bridge.

3. offer: of. Y. There was no error in refusing to render judgment against defendant for the amount offered to be confessed. The offer ivas not accepted. Section 2900 of the Code provides that if notice of acceptance is not given within the time prescribed the offer shall be deemed withdrawn and shall not be given in evidence or mentioned on the trial. In such case the only consequence that follows the offer is that if the plaintiff’ fails to recover more than was offered, he shall pay all the costs accrued after the time of mailing the offer. The record discloses no error.

Aeeibmed.