Hanousek v. City of Marshalltown ( 1906 )

Ladd, J.

The plaintiff slipped and fell as she was passing along Second avenue in the city of Marshalltown on the evening of February 27, 1904. A private alley extends west from this avenue between a building known as “ The Odeon ” and a dry goods store. The evidence tended to show that, through a pipe running from the roof gutter of the Odean to the ground, water poured during rainfalls or when ice or snow was melting, spread over the sidewalk at that place, and sometimes froze. It was here that plaintiff claimed she fell, and the particular negligence charged is that of allowing snow and ice to accumulate there in such quantities and manner as to render the walk dangerous for use by pedestrians. The evidence was in sharp conflict as to whether ice and snow had accumulated as alleged and as to whether plaintiff fell where she claimed or north of the alley crossing. But three errors are assigned, and these will be disposed of in the order presented in argument.

i. Personal in-walks: 'note®' evidence. I. Hans Peterson was called as a witness, and, without objection, testified that he had passed along the avenue in question several times a day for fourteen years, that he “knew the alley north of the theater and the conductor that runs down to the northeast cornert When the winter sets in there would naturally be some water and snow and kind of freeze, and, at a time when the sun shines, it will melt and run down that pipe over the crossing. And then in the evening again, when they have the opera house going and have steam in the opera house, the water will drip and drip and still freezing outside until it makes kind of rough ice there. The center part is a little low and the sidewalk slopes three ways, towards the street and from the side both ways, and fills up in the center and freezes, and keeps on flowing until it makes ice there.” He was then asked this question: “ Tell the jury, with reference to the last two or three winters, how much of the time this condition that you have described existed and when ? In what kind of weather % ” This was objected to as incompetent, irrelevant, and immaterial and not confined to the time in issue and the objection overruled. He answered: “As I said, before or when winter sets in until spring, when winter lets up, always some ice there.” Exception is taken to the ruling on the ground that evidence of the condition of the sidewalk at other times than that in question was not admissible. But this is not so. The conditions which produced ice at that locality had been described as existing for many years previous and it was proper to show, as tending to charge the city with notice of the condition of the walk at the time of the accident, that ice had in fact formed at that place whenever rain or snow fell and the weather was cold enough to freeze water. If the walk at that place, owing to the surrounding conditons, was always icy and frequently dangerous in freezing weather, it might well be inferred that the city was aware of this, and therefore negligent in not requiring the defect to be remedied.

2' rogaTories.12*" II. The court submitted to the jury five special interrogations requested by the defendant, and it complains because two others were refused. Those refused were but the repetition of the two submitted in different forms. A litigant is entitled to but one special finding of an ultimate fact. The inquiry therefore should be couched in simple and direct language calling, if practicable, for a categorical answer. Morbey v. Railway, 116 Iowa, 84. Repetition of the same question in different language, aside from involving a waste of time, necessarily tends to confuse the jury, and should be avoided. The ruling was right.

8‘ ne\víy djacóvIII. One of the grounds upon which defendant based its motion for new trial was the discovery of other evidence. But it was cumulative merely. In so far as the affidavits attached to the motion indicate that affiants saw plaintiff fall, this is conceded. One of them, however, swore that he knew her and that she is the identical person who fell north of the alley crossing on the night in question. His identification may be more positive tban that of Dr. James, who testified that “ plaintiff looks like the lady,” but is none the less cumulative in character. It is evidence of the same kind to precisely the same point. Able v. Frazier, 43 Iowa, 176; Wayt v. Railway, 45 Iowa, 217; Bullard v. Bullard, 112 Iowa, 423. As the newly discovered evidence was cumulative in character, the court did not abuse its discretion in denying the application for a new trial. — Affirmed.