Thomas v. The Town of Brooklyn. hole in the sidewalk. The amended petition conforming to the proof omits the allegations about the loose board, and avers that the walk "was not firm and was sprung from the ground," which caused the fall. Without stopping to inquire whether the variance between the proof and allegations of the original petition really demanded the amendment, or whether the amendment changed the issues, but admitting for the purpose of the case, each proposition, we are of the opinion that the amendment is authorized by the statute, which is most liberal in permitting amendments to pleadings at any time. Code, § 2689-2692. If after the amendment, defendant was not prepared to submit the cause to the jury, a continuance would have been allowed at the cost of plaintiff, if it had been made to appear that defendant was surprised, or was not prepared to meet the issue raised by the amendment. But defendant made no claim of surprise and did not inform the court that it could not safely proceed with the trial. It cannot after having remained silent then, insist now that it was prejudiced by the amendment. 2. struction: practice. only II. The defendant asked the court to give two instructions, the 2d and 7th, directing the jury in substance that to : in- authorize plaintiff to recover, the defect in the sidewalk must have been of such a character that a man of ordinary prudence would have regarded it as dangerous. The thought of the instruction is that defendant ought not to be held liable for trivial defects, but from such as an ordinarily prudent man would regard dangerous. court in an instruction directed the jury in effect that defendant was to be held liable only in case the sidewalk was reasonably safe for persons passing upon it. Now it is very plain that a sidewalk that is not reasonably safe would be regarded as dangerous by a man of ordinary prudence. The language of the instructions, both given and refused, appears to us to hold defendant liable only in case the sidewas not reasonably safe. The court, therefore, did not err in refusing the instruction asked by defendant, as sub The not walk Thomas v. The Town of Brooklyn. stantially the same rule it presents, is embraced in the one given. 3. injury. : III. The defendant asked the court to instruct the jury that in determining defendant's liability, they should inquire whether persons unacquainted with the walk were Jiability for likely to travel over it, thus making the frequency of its use a circumstance to be considered upon the question of defendant's care. The sidewalk was upon a public street, open to all for travel. All the inhabitants of the town, and strangers visiting it, had the right to use the sidewalk. It surely could not be found that persons not acquainted with the condition of the walk would not probably travel over it. And should such a probability exist, defendant was bound to maintain the sidewalk in a reasonably safe condition, for the protection of such persons as might possibly use it contrary to the assumed probability. The town could not maintain a dangerous public highway and escape liability, on the ground of the expectation or probability that no one unacquainted with its defects would pass over it. IV. The court in two instructions, the 3d and 4th, directed the jury that defendant was chargeable with notice of the defect in the sidewalk, if it was "so notorious as to be observable by all." The defendant's counsel insist that the rule is this: "The defect must have been apparent to passers by, and must have existed so long that the officers with reasonable care would have known it." In our opinion the instruction given announces a rule more favorable to defendant than the rule insisted upon by counsel. It requires that the defect should be known to all beyond denial, and that it had existed for such a time that it would be so known. The rule expressed by counsel is not so broad. The instructions complained of are more favorable to defendant than instructions approved in Rice v. City of Des Moines, 40 Iowa, 638; Doulon v. City of Clinton, 33 Iowa, 397. V. The Circuit Court, in the 10th instruction, directs the mar ried women: of time. Thomas v. The City of Brooklyn. jury that, if they found for plaintiff, they should in their verdict allow her for the loss of time she would damages: loss sustain, both before and after the trial, on account of the injuries she suffered. Under this instruction the jury was directed to allow plaintiff for the damages resulting from her loss of time, without finding that she was entitled to recover such damages on the ground that she was prosecuting a business separate from her husband. If she had no such business, and was, as a married woman, engaged in no employment other than in the discharge of the ordinary duties of a wife, she was not, under the law, entitled to recover in an action in her own name for loss of time. Whether she was engaged in a separate business, in her own name, was a question for the jury. There was evidence upon this point, and the court should have directed them to find thereon according to the fact, and render their verdict in harmony therewith. But the instruction authorizes a verdict for plaintiff, even though the jury should find that plaintiff was engaged in no separate business. It is therefore erroneous. Other questions discussed by counsel need not be considered. For the error committed by the Circuit Court in giving the 10th instruction the judgment must be REVERSED. Brett v. Farr. BRETT V. FARR. 1. Injunction: SETTING ASIDE default: abuSE OF DISCRETION. The facts in this case considered and held to present sufficient grounds for setting aside the default; and that in overruling the motion to set aside the default, and in denying any hearing upon the merits, the court below abused its discretion. Appeal from Bremer District Court. TUESDAY, JUNE 6. ACTION for an injunction. The injunction was allowed, and afterward a decree was rendered against the defendant by default. The defendant then filed an answer, and also a motion and affidavit to set aside the default. The motion was overruled, and from the order overruling the motion the defendant appeals. Ephraim Kinne, for appellant. Gibson & Dawson, for appellee. ADAMS, CH. J.-The defendant's excuse for not answering before default is, that he failed to obtain a copy of the petition, and that about the time court commenced he was taken sick. TION: Setting abuse of dis cretion. The action was brought to the April term, 1881. The rules of court in that district require that "the plaintiff shall 1. INJUNC- at least ten days before the first day of the term aside default: to which the cause is returnable, deposit with the clerk of the court for the use of the defendant, one copy of the petition, and unless on file the cause shall be continued," etc. Three days before the commencement of the term the defendant applied in person at the clerk's office for a copy of the petition, but was unable to obtain it, as there did not at that time appear to be any copy on file. He then, under Brett v. Farr. the advice of a friend, who had at one time been an attorney of the court, filed an affidavit stating that he had applied for a copy of the petition, and was informed by the clerk that there was none on file. He further stated in his affidavit, that he had received no copy of the petition, and had authorized no person to receive a copy of the petition for him, or to appear for him, and that he asked for a copy, and also, that he be allowed reasonable time to prepare his case after a copy should be furnished him. The defendant then returned to his home, which was about eleven miles distant from the county seat, and was soon taken sick, and was confired to his house almost the entire time for about nine days. Default was taken against him on the second day of the term. There was some evidence tending to show that a copy of the petition was filed, at the time the petition was filed. But the evidence was by no means conclusive, and the deputy clerk who thinks that he filed the petition, thinks that no copy of it was filed. But we do not deem this question a controlling one. It is certain that there was none on file three days before the term when it was applied for, and that it had not been delivered to the defendant, nor to any one employed by him. In view of this fact, and of the rule of court, and the affidavit of the defendant which he had placed on file before the default was taken, and his sickness which occurred immediately thereafter, we think that the excuse shown was suffi cient, and that the court, in overruling the motion and denying any hearing upon the merits, abused its discretion. REVERSED. |