Bussell v. City of Fort Dodge

Bishop, J.— First as to the questions involved in the appeal by. the defendant city: i. defective s™IfT!iijSry; negligence. I. Counsel for appellant do not deny in argument but that a case of actionable negligence on the part of the city was fully made out. The contention is that the record fails to show that, at the time of his accident, plaintiff was in the exercise of 'ordinary care, and -was therefore free from contributory negligence. The excavation into which plaintiff fell was in the line of the sidewalk, and had been made by defendant Corey in connection with the erection of a building by him as the owner of the abutting lot. Plaintiff testified that he did not know of the existence of such excavation. lie further testified that the night was dark, and that as he passed along the walk the first intimation he had of the presence of the danger was when he fell into the excavation. The evidence as to a barricade about the excavation, and as to the sufficiency thereof, and with reference to the display of signal lights, was in conflict On the whole, we have no doubt but that the question of care on the part of the plaintiff was one for the jury. Its finding was warranted, and we cannot disturb it. 2. Same II. The defendant requested an instruction to the effect that if plaintiff knew of the excavation, or by the exercise of ordinary care should have known thereof, and that it was imprudent to attempt to pass over the same, and if there was another and safe way which he could have taken, then he was guilty of contributory negligence and could not recover. The request [311] was refused, and properly so. Tbe reason therefor becomes apparent when it is remembered that.plaintiff testified that; he did not know of the excavation until he fell into it, and in this he was not contradicted. Knowledge of the danger is essential to the rule as announced by the cases which counsel cite and rely upon. In this case the contributory negligence of plaintiff; if such there was, consisted in his' going into the excavation, when, had he been exercising due care, he would have discovered such excavation in time to have avoided it. This was the view taken by the trial court, and we think the jury was properly instructed with reference thereto. 3. Instructions: ' erroneous use of words. III. Complaint was made of the ninth instruction given, for that the same was misleading and did not contain a correct statement of the law. The particular criticism is that in such instruction the word properly ” 47 was used instead of the word “ improperly,” 4 x. x j ? the latter manifestly "being the appropriate word. We may concede that in the use of the word mentioned, and as hereinafter more particularly referred to, the instruction was, in the abstract, open to the criticism made. But we cannot believe that any misunderstanding resulted. At the outset the jury was told that the negligence charged against the city was in failing to provide proper protection against the excavation, and that thought is carried through the instructions as a whole. In the eighth instruction the jury was told specifically that if the city had failed in its duty in the respect indicated, a finding of negligence wouldi be warranted. Now, in the ninth instruction the jury was told that “ if plaintiff has failed to establish either that he was in the exercise of reasonable care, or that the excavation was properly protected, or that sufficient light was placed to apprise a person of the existence of the excavation, etc., your verdict will be for the defendant.” It was incumbent upon plaintiff, of course, to prove that the excavation was improperly guarded. Tf it could [312] be said, that tlie attention of tbe jurors was attracted to the word used, still it must be said that the real meaning of the court stands out so plain upon the pages of the charge that there was no room left for misapprehension. Moreover, it does not appear that the attention of the trial court was specifically called to the error in the use of words by the motion for new trial. 4. ppeal. IV. Other alleged errors, having relation to the admission of evidence, to requests for instructions, and to instructions given are either without merit, or are disposed of by what has already been said. The contention for error based upon the ruling of the court ordering a continuance of the case as sought to be made against defendant Corey under the cross-petition cannot be considered, as such w;as not an order from which an appeal could be taken. Jaffray v. Thompson, 65 Iowa, 323. 5. Same Coming now to the appeal by the defendant Corey, it is apparent that the theory of the cross-petition is that, as between the city and Corey, the liability to plaintiff in this case, if any such there be, must be held to rest solely upon the latter. This thought is predicated upon the allegation that the excavation in the street was made by Corey, and for his own uses and purposes, and, further, that to leave the same without the erection of proper barriers and .the display of proper signal lights was an offense under the ordinances of the city. The prayer is that if the matters charged in the petition shall be found to be true, and plaintiff have judgment in any amount against the city, the city have judgment for a like amount against Corey. Now, whatever may be said respecting the attitude of the court in refusing to allow Corey to have any part in the trial, and should we concede that under any circumstances an appeal could be prosecuted from a ruling upon a motion to direct a verdict, it seems clear that this appellant has no standing in this court. There- had been no attempt at a trial of the case as against him, and it was not proposed to ask the [313] jury to consider him or bis rights or interests in making up a verdict. A motion to direct a verdict simply challenges the sufficiency of the record to make out a case as against a defendant who has been compelled to submit to a trial. In effect, it amounts to no more than a request that the court find the facts instead of ordering a verdict. If the motion include an attack upon the sufficiency of the pleadings, as in this case, it may be regarded as akin in character to a motion in arrest of judgment as well as a demurrer to the evidence. As a general rule — and we need not stop to make inquiry as to what circumstances, if any, could be relied upon to justify an exception — an appeal does not lie directly from the ruling denying a motion for verdict, or from the verdict itself, or from a ruling denying a motion in arrest. Code, section 4101; Andrews v. Concannon, 76 Iowa, 251; Walker v. Pumphrey, 82 Iowa, 487; Miller v. Sharpe, 54 Cal. 590; Ryan v. Kranz, 25 Minn. 362; McLeod v. Bertschy, 30 Wis., 324; 2 Enc. of PI. & Pr. 82, 107. We have already seen that an order directing the continuance of a cause for trial is not the subject of a direct appeal. From what has been said, it follows that the appeal by the defendant Corey, must be, and is, dismissed. On the appeal by the defendant city of Ft. Dodge, the judgment must be, and it is, affirmed.