Doulon v. The City of Clinton. condition, and proof of injury alone is not presumptive evidence of negligence. See same cases. Before the defendant can be held guilty of negligence, on account of defects in the sidewalks (not arising from their original construction), or for an obstruction placed thereon by a wrong-doer, either express notice of the existence of the defect or obstruction must be brought home to it, or they must be so notorious as to be observable by all. Mayor, etc., of N. Y. v. Sheffield, 4 Wall. 189; Griffin v. Mayor et al. of N. Y., 9 N. Y. 456; Vandyke v. Cincinnati, 1 Disney, 532; Howe v. Plainfield, 41 N. H. 135; Bardwell v. Jamaica, 15 Vt. 438; Prindle v. Fletcher, 39 Ill. 255; Lobdell v. New Bedford, 1 Mass. 153; Reed v. Northfield, 13 Pick. 94; Bigelow v. Weston, 3 Ill. 267; Manchester v. Hartford, 30 Conn. 118; McGinty v. Mayor, etc., of N. Y., 5 Duer, 674; Dewey v. Detroit, 15 Mich. 307; Montgomery v. Gilmar, 33 Ala. (N. S.) 116; Hart v. Brooklyn, 36 Barb. 226; Shearman & Redfield on Neg., § 407, 408, 146; Hutson v. The Mayor, etc., of N. Y., 9 N. Y. 163; Mayor, etc., of N. Y. v. Furze, 3 Hill, 612; Goodnough v. Oshkosh, 24 Wis. 549. See, also, Rowell v. Williams, 29 Iowa, 210. Negligence must be affirmatively shown, and the mere existence of a defect in the sidewalk is not enough to establish negligence on the part of the corporation. It must in some way be connected with the defect, either as having directly caused it, or having assented to its creation by another, or as having, with a knowledge of its existence, permitted it to remain. See Hart v. Brooklyn, supra. The jury in this case was charged in substantial compliance with the above rules, and it seems manifest, upon this view of the law, that the verdict is not supported by the evidence. The first injury complained of, plaintiff testifies, was on Second street, near the Revere House, and consisted in being tripped by a broken plank in the sidewalk. She says that Doulon v. The City of Clinton. two men who were passing stepped on one end of the plank and the other end flew up and struck against her legs. She was going to church at the time. She went right on and did not think she was hurt; and there is no evidence whatever that she was hurt in the least degree, or that she fell. The plaintiff's two daughters testify to the same facts. But one other witness for the plaintiff testifies to the existence of this broken plank -Mrs. Williams, a sister of Mrs. Doulon. None of them, nor any witness for the plaintiff, states how long the plank remained in a broken condition without repair, whether for an hour, a day or a month, while a large number of witnesses of high respectability testify that they were in the habit of passing over this walk daily, to and from their business, and never discovered the broken plank at all, and the only evidence that the city or any of its officers had any knowledge of the defect in the walk is that of the street commissioner, who testifies that he was over the walk every day in the fall of 1869 (the time the accident occurred); that the walk was a good one generally; that in passing he noticed the broken plank and immediately repaired it; that it existed probably only a part of a day; that it could not have existed to exceed one or two days, and that his attention had not been called to it until he discovered it himself, and at once repaired it. There is no claim or pretense that any officer of the city, except the street commissioner, had notice of the defect, and he was prompt and diligent in repairing it. Neither does the evidence tend in any degree to show that the defect existed for such a length of time as to become notorious to all passers by, but the contrary very satisfactorily appears from all the evidence. II. The plaintiff testifies, in respect to the second alleged injury, that some weeks after the first one she was going down Second street to the cars, with her babe in her arms; Doulon v. The City of Clinton. that as she stepped off the sidewalk on the corner of Seventh avenue on to an apron leading into Seventh avenue, she caught the second hoop in her skirt on two spikes sticking up about one inch in the apron, which tripped her and threw her down. Mary Doulon, plaintiff's daughter, testifies that on this occasion her mother's hoop-skirt caught on a spike in the apron leading into Seventh avenue from the sidewalk and threw her down. William Atcheson testified that he saw the plaintiff fall, and that her dress caught on a spike which threw her down. This is all the evidence whatever of the existence of the protruding spikes. There is no evidence that they protruded at any time except at this particular time, or that the city had any knowledge of their existence or condition. On the other hand, it is stated by the person who built the apron that it was well built, that he saw it every day repeatedly afterward, during the fall of 1869, and that he never saw any spikes protruding; and eight other witnesses who were in the habit of passing over this apron every day, all swear that it was well built, and that they never saw any spikes or nails protruding. So that in respect to this alleged defect, also, if any existed, it is not shown that any of the city officers had knowledge of it, or that it existed for such a length of time as that knowledge could be presumed. In a word, no negligence, on the part of the defendant, has been shown. There is an entire absence of evidence of any negligence, which is the gist of the action. The verdict should have been for the defendant. Having been for the plaintiff it should have been set aside. Rev., § 3112; Jourdan v. Reed, 1 Iowa, 135; Stewart v. Ewbank, 3 id. 191; McKay v. Thorington, 15 id. 25. VOL. XXXIII. 51 Reversed. Ruddick v. Otis & Snow. 33 402 81 425 33 402 96 21 33 402 110 232 33 402 a109 521 33 402 120 359 120 361 33 402 131 117 RUDDICK, ASSIGNEE, V. OTIS & SNOW. 1. Partnership: EVIDENCE OF: INTER SESE. In order to constitute a partnership as between the partners themselves, there must be a sharing of the losses as well as participation in the profits. 2. APPLICATION OF THE RULE. Writing in the following form: "Received of G. & Co. $2,000 to invest in wool. Said G. & Co. to received two-thirds of the net profits on the sale of wool, and O. & S. one-third. (Signed) O. & S." Held, that the writing did not establish a partnership between the parties. 3. Evidence: AGAINST DECEASED PARTNER. In an action by an assignee in bankruptcy of a surviving partner, the defendant is not rendered incompetent by section 3982 of the Revision, to give evidence respecting transactions that took place between him and the deceased partner in relation to the matter in controversy. Appeal from Lee District Court. SATURDAY, FEBRUARY 24. THE petition alleges that Gafford & Co., a firm composed of Joseph Gafford and Robert B. Foote, entered into a partnership with the defendants, Otis & Snow, for the purpose of buying wool, and that a memorandum and receipt, containing in part the terms of partnership, was executed and delivered by defendants to Gafford & Co. as follows, to wit: "KEOKUK, June 28, 1864. "Received of Gafford & Co. $2,000 to invest in wool; said Gafford & Co. to receive two-thirds of the net proceeds or profits on the sale of wool, and Otis & Snow one-third. OTIS & SNOW." "If any more money shall be required to invest, the above terms shall hold good. OTIS & SNOW." The petition alleges that said memorandum contains only part of the terms of the agreement; that Gafford & Co. and Otis & Snow engaged in the business of buying and disposing of wool as partners, and that Otis & Snow were Ruddick v. Otis & Snow. to bear one-third the losses, if any should occur; that Gafford & Co. advanced, pursuant to said agreement, $19,265.60, with which defendants purchased 20,948 pounds of wool; that the net proceeds of the sales of said wool were $10,817.65, and that the loss in the transaction was $8,447.65, the defendants' share of which is $2,815.88. The petition asks an accounting, and that plaintiff have judgment for the amount found due. In answer defendants deny the contract of partnership, and allege that in the purchase of said wool they acted merely as the agents of Gafford & Co., and were to receive one-third the net profits, as their entire compensation for their services. The cause was commenced by Joseph Gafford, surviving partner of Gafford & Co. Afterward Joseph Gafford was decreed a bankrupt, and his assignee in bankruptcy, R. L. Ruddick, was substituted as plaintiff. The action was tried as an equitable issue, by the first method. Judgment for defendants. Plaintiff appeals. McCrary, Miller & McCrary for the appellant. DAY, J.-I. Appellant claims that the writing executed by Otis & Snow conclusively establishes a partnership between them and Gafford & Co. The writing is as follows: "Received of Gafford & Company, $2,000 to invest in wool. Said Gafford & Co. to receive two-thirds of the net proceeds or profits, on the sale of wool, and Otis & Snow one-third. OTIS & SNOW." "If any more money shall be required to invest, the above terms shall hold good. OTIS & SNOW." This memorandum shows simply an advance of money by Gafford & Co.; that it is to be invested in wool by Otis & Snow; and that Otis & Snow are to have one-third the net profits. It is worthy of remark that this case involves a question of partnership inter sese and not as to third |