Cooper v. City of Oelwein

Ladd, J.

I. assignment The sidewalk along First Avenue in the city of Oelwein consists, of cement blocks. At one place the edge of a block was from one and one-half to one and three-quarter inches higher than the surface of that next to it, and plaintiff, while rapidly walking, stepped on the high part with the heel of her shoe and the toe on the low part, lost her balance, and fell. She was injured, and in this action demanded damages, but these the jury denied. Eight errors are assigned, but the first four are too general to indicate the ruling to which the exception was intended to be taken. Thus the first is to the court’s refusal to give instructions one to six requested by plaintiff “defining negligence, the care re *183 quired of plaintiff, the liability ■ of defendant in such cases to be commensurate with the risk and danger reasonably expected or liable to .incur, and not covered by the court in its instruction.” The next three are equally without point. Assignments of error as such are no longer essential to a review of the rulings of the district court (section 4136, Code Supp. 1907), but this court is entitled to know the errors relied on for reversal, and this much is exacted by rule fifty-four. The record will no more be searched to ascertain the rulings hinted at, but not stated, than formerly; but, to entitle the appellant to a hearing thereon, the particular ruling complained of must be indicated and where to be found in the record pointed out. This is the least that can be exacted from an appellant, and therefore the first four alleged assignments will be disregarded because of failure to state the errors or' rulings to which exception is' taken. Dale v. Coal Co., 131 Iowa, 67 ; McCormick Harvesting Machine Co. v. McCormick, 128 Iowa, 155 .

• 2 Contributory negligence:, instructions. II.. The court, after indicating as a condition of rer covery the necessity of a finding that defendant had been negligent, added that “she must further establish that she was not guilty of any negligence which in « « • any way contributed to cause said accident .. .... . , or her injury, and, later on, that the burden was on her to prove that “she was not guilty of any contributory negligence.” Had this not been followed by a clear and unequivocal definition of negligence the instruction must have been condemned. Jerolman v. Ry., 108 Iowa, 177 . But negligence was defined in the fifth instructidn, and therefore the error, as was said it would have been in the cited case, was obviated, for that any neglect sufficient to constitute want of ordinary care when contributing to the inj'ury will defeat recovery. The sixth instruction, in defining contributory negligence as any want of *184 ordinary -care, however slight, which contributed as an efficient cause to the injury, has the approval of the cited case and of the authorities generally. The instruction when considered in connection with others was not erroneous.

3. Municipal corporations: defective streets: negligence: notice. III. Complaint is made of an instruction that defendant, after it knew, or, in the exercise of ordinary diligence, should have known, of the defect was entitled to a “reasonable time and opportunity before the accident to repair the defect.” All exacted of the municipality was that it exercise ordinary diligence in- keeping its streets in repair, and, before it can be said to have been negligent therein, it must have had notice of the defect complained of, actual or constructive, and an opportunity to restore the walk to a reasonably safe condition. Otherwise, there has-been no want of ordinary care on the part of the officers charged with the duty of maintaining the streets in a reasonably safe condition. Hall v. Town of Hanson, 90 Iowa, 585 .

4 Same: instructions: harmless error. It appears that plaintiff was married a few days after the accident, and the tenth instruction is criticised for allowing recovery for loss of time up to that event only. But this bore on the amount and not tfie right to recovery, as did also another portion - . . ± of the tenth instruction, directing that pain and suffering due to neglect of plaintiff in not properly caring for her injuries should not be considered, and therefore, even if erroneous (a point not decided), could not have been prejudicial, as the right to recover at all was denied by the verdict. The judgment is affirmed.