Lindsay v. City of Des Moines

Seevers, C. J. 1. Practice: improper remarks to jury: oral disapproval by court: no prejudice. I. During the argument to the jury, counsel for the defendant stated: “You have a right to consider that the city of Des Moines had two hundred miles of sidewalk which had to be looked after as much as this where Mrs. Lindsay fell;” to which counsel for the plaintiff objected, and the judge stated orally “that he would instruct the jury not to consider any remarks as to the number of miles of sidewalk in said city,” and thereupon defendant’s counsel desisted from further statements of that nature; but the court [113] failed to so instruct the jury in writing. It is insisted that what was said by counsel is clearly prejudicial error, in view of the fact that on a former appeal it was held that the court erred in admitting evidence as to the extent of the sidewalks in the city. Lindsay v. City of Des Moines, 68 Iowa, 368. It will be observed that when the remarks were made by counsel the court, in the presence of the jury, said he would instruct the jury to disregard such remarks. This amounted to a condemnation of what counsel had said, and the jury would certainly understand that the statements of counsel were improper, and should not be considered. The fact that the court failed to so instruct the jury in writing is immaterial. Under the circumstances, we do not believe what was said by counsel constitutes reversible or prejudicial error. 2 fEEsiif sidewalk: instructions. II. The third paragraph of the charge is lengthy, but the court, among other things, said that “the city is not an insurer of the safety of persons traveling upon its sidewalks.” It is not claimed that this is not the law, but that _ _ ' „ there was no such issue, and, therefore, what the court said was “ impertinent and uncalled for.” Immediately following, and as apart of the same sentence, the court said, “and is only liable when injuries are incurred without fault on the part of the person injured, and because of negligence on the part of the city.” In our opinion this instruction states the law correctly, and was not impertinent or uncalled for. 2 Dill. Mun. Corp., sec. 1019. 3 acCTimi:ilate III. The court stated the issues to the''jury fully and correctly, and that the plaintiff claimed to recover because snow and ice were permitted to on the sidewalk ; but in the fifth paragraph of the charge stated that large quantities of snow were permitted to accumulate on the sidewalk. Because of the omission of the word “ice” from this paragraph, it is said the plaintiff was greatly prejudiced. But we do not think so. Taking the whole ' [114] charge of the court together, it is perfectly clear to our minds that the jury could not have failed to understand that if the city negligently permitted snow and ice to accumulate on the sidewalk, and the plaintiff, without negligence on her part, by reason thereof,' fell and was injured, she was entitled to recover. Therefore, no prejudice resulted because of the omission of the word “ice” from the fifth paragraph of the charge. 4. Cities and towns: defectivo sidewalk :■ duty of city; instruction. IY. The court said to the jury: “If you have-■found that the plaintiff was injured * * * because of the negligence of the city * * * you will consider the duty of the city with respect to its sidewalks, whether the walk at the place of the accident was in an unreasonably dangerous condition. * * *” Complaint is made of the words “unreasonably dangerous.” The thought of the court no doubt was that the walks must be kept in a reasonably safe condition, and, if not so kept, it necessarily follows that the walks were in an unreasonably dangerous condition. While this language cannot be commended, we do not think its use constitutes error. The jury without doubt clearly understood from the whole charge upon what the liability of the city depended. Affirmed.