Johnson v. City of Sioux City, 114 Iowa 137 (Iowa 1901)

Given, C. J.

I. Second avenue, in the city of Sioux • City, is a much traveled street, running south from’ the business part of the city, and three miles or more from the cen'ter of the city is intersected .by Peters avenue. Prom about this intersection, Second avenue passes south through a cut for several hundred feet; the cut being about 18 feet wide .at the bottom, about 24 at the top, and about 18 feet deep at the deepest point. The hill being a gradual rise, it was pos-sible to drive up it for some distance on the east side of the •cut. On the night of September 22, 1898' — a very dark night — the plaintiff and his brother and brother-in-law wei-^ ■driving south on Second avenue in a single-seated, one-horse buggy. On reaching the north end of the cut, either -of its own accord, or from control of the plaintiff, who was •driving, the horse left the traveled track on the east side

thereof; and plaintiff, realizing that they were out of the traveled track, stopped the horse and got out of the buggy .to search for the traveled track. He passed round the head •of the horse and fell over the bank to the road, some 15 feet below, and was so injured as to necessitate amputation of ■.one of his legs. The charges of negligence against the defendant are as follows: “That the said negligence consists in said city making and permitting to be made a deep cut or •excavation within the limits of a much traveled public highway, and for a long time suffering and permitting said cut to bo and remain without any fence, guard, railing, or other 'barricade along the side of said cut and excavation to prevent travelers along said highway from falling or driving into the same, and in not placing, keeping, and maintaining lights or other guards or visible objects at and near said cut to notify and warn travelers using due care of the proximity ■of said place of danger, and in constructing and maintaining said highway too narrow for safety, and not of sufficient width, and in constructing too narrow an entrance to said ■cut, and in causing and permitting the said entrace to be and ■to remain on a level with the surface of the ground adjacent to said cut; * and the said city of Sioux City was negligent in net erecting and maintaining a fence, railing, .guard, light, or other warning at the entrance to said cut, so as to guide and confine plaintiff and other travelers along said -highway in the nighttime into the traveled part of said highway at said point.”

1 *2 II. One Johnson was permitted to testify, over de■fendant’s objection, that he saw buggy tracks east of the ■cut. This was competent, as tending to show where the plaintiff had driven out of the traveled way. The objection seems to be that it was not until 10 days after the accident that witness saw the tracks. He says 'in one place that it was the second day. The time goes to the weight of the testimony, and in either event it is not so great as to exclude it. A road known as the “Morning Side Hoad,” from the southeast, runs into

Peters avenue near its intersection with Second avenue, and a little east of the north end of the cut. A witness was ashed if the horse plaintiff was driving had been kept in Morning; Side, and, over defendant’s objection, he answered: “That I can’t say. He had been drove out there and delivered out to people who wanted him.” There was no error in this* The horse had been procured at a livery bam that night,, ■and it was competent to show that the horse had been driven on the Morning Side road, as tending to show why he left the traveled track in Second avenue. -

3 III. Counsel discuss at length and with numerous citations the issues of negligence. We should not consume space to follow these discussions of facts, as to do so will serve no desirable purpose. It is sufficient to say that the questions whether the defendant was negligent as charged, and whether the plaintiff was free from negligence contributing to the injury complained of, were fully, fairly, and plainly submitted to the jury, and that the verdict has such support in the evidence as that we should not disturb it.

4 iy. Appellant contends that the verdict is contrary to the seventh and fourteenth paragraphs of the instructions. The court instructed that it was the duty of the city to maintain its streets in a reasonably safe condition for those who traveled thereon, “and not for those who leave the highway or approach the road from outside the limits of the public highway.” Appellant’s contention is that plaintiff had left the highway; but that was disputed, and the jury was warranted in finding that he had not left the limits of the highway. It is said that these instructions do not state the law correctly, for that it is not the duty of the city to keep in repair its streets to the whole width thereof. The instructions are not to the contrary. These instructions refer in part to the charge that defendant was negligent in not fencing along the top of the cut to keep people from falling over — a charge that was practically and

properly eliminated by tbe seventh instruction. If the defendant was negligent, it was in not putting up some barrier at the entrance, to the cut, that would direct those traveling in the dark into it, and prevent them from going unawares up the sides.

V. Appellant complains that the instructions were not numbered as required by section 3708 of the Code. They were plainly paragraphed, but not consecutively numbered.

b They are consecutively numbered to and including 'No. 12. Then- by oversight the next is numbered 14 instead of 13, and the three that follow are each marked “Par.,” but without numbers. Although this requirement has been the law for many years, it does not appear that an omission to number the instructions was thought to be prejudicial. In Goin v. Hess, 102 Iowa, 140, the court failed to number the paragraphs of the charge, Ibut we did not determine whether such failure was a sufficient ground for a new trial. When the omission is without prejudice, it is oer-' tainly no ground for reversal. Appellant fails to indicate wherein it was prejudiced in the least by this partial failure to number as required.

What we have said fully disposes of all questions raised! <on defendant’s motion for a new trial. Our conclusion is that the judgment is correct. — Affirmed.