Ahern v. City of Des Moines

• Citation: 12 N.W.2d 296,234 Iowa 113
• Decision Date: 14 December 1943
• Docket Number: No. 46331.,46331.
• Parties: AHERN v. CITY OF DES MOINES.
• Court: United States State Supreme Court of Iowa

234 Iowa 113
12 N.W.2d 296

AHERN
v.
CITY OF DES MOINES.

No. 46331.

Supreme Court of Iowa.

Dec. 14, 1943.

Appeal from District Court, Polk County; Jos. Meyer, Judge.

Appellee sought recovery of damages by reason of injuries received when he fell on a sidewalk in the appellant city. A verdict was returned against the city and it has appealed.

Affirmed.

[12 N.W.2d 297]

F. T. Van Liew, Bruce J. Flick, Paul Hewitt, and Harvey Bogenrief, all of Des Moines, for appellant.

Raymond Hanke, of Des Moines, for appellee.

WENNERSTRUM, Justice.

Plaintiff, in an action against the city of Des Moines, Iowa, sought recovery for damages sustained as the result of personal injuries received. He contended that he fell upon ice which the city had allowed to remain upon a sidewalk. He asserted that this icy condition had developed as a result of the drainage of water from a down-spout on a building, which water drained across and froze on a walk that was adjacent to the building. The defendant claimed that there was no showing of any condition other than one of slush and water and that it was not liable for this temporary condition. Upon trial of the issues involved and submission of the case to the jury a verdict was returned for the plaintiff and thereafter judgment was entered against the defendant. It has appealed.

The appellee's injuries were received on January 16, 1941 between 9:30 and 10:30 p.m. He fell on a sidewalk on the north side of Crocker Street in the City of Des Moines between 19th Street and 19th Street Place. This walk runs east and west and parallels or is adjacent to the south end of a building. It is alleged in the appellee's petition, which is supported by the evidence, that at the southwest corner of the building previously referred to there is a down-spout from the roof and that the water from this spout is discharged upon the sidewalk. It is the claim of the appellee that as a result of the water running across the sidewalk and the freezing of it, rough formations of ice had developed on the walk and he slipped on this ice and was injured.

It is disclosed by the evidence, on the part of both the appellee and the appellant city, that to the west of the down-spout, the sidewalk slopes downward. Testimony was presented by the city which showed that there is a fall of about 8 1/4 inches from the down-spout to the street curb which is 8.6 feet west of the spout. It is the claim of the city that the appellee fell on the sloping sidewalk leading from the building down to the curb, that the entire city at the time of the accident was covered by a sheet of ice, that if the appellee slipped and fell in slushy or loose snow, as it contends, the city was not liable for this temporary condition.

Inasmuch as it is contended by the appellant that there is a variance between the pleaded allegations as to negligence and the evidence presented by the appellee as to the place where he fell, we are hereinafter setting forth portions of appellee's testimony. It is the contention of the appellant city that the notice of injury that was served upon it and appellee's petition referred to a fall received in the vicinity of the down-spout while the evidence introduced indicates that the appellee fell on the sloping portion of the walk leading down to the curb. The appellee's testimony as to the place where he fell and the condition

[12 N.W.2d 298]

of the sidewalk is, in part, as follows:

“It (the sidewalk) slopes more or less from north to the south at the place where I fell. Before you get to that place I don't believe there is any particular slope in either direction. It is comparatively level except at the end of the sidewalk where it comes up on 19th Street Place. *** there was snow and ice on the sidewalk, and of course, I was taking proper precautions, as much as I possibly could, ** I had reached almost the end of *** building, that is, the western end of it, when I, of course, was walking along, and as I say, the sidewalk was rough. ***. It was rough and glazed and pointed, that is, the ice. That is, ice had formed, I was walking along and I imagine that something gave way as I was walking. ***; there was water on the sidewalk which was caused from the spout which was attached to the building ***, and this water was running across the sidewalk. *** There was snow and ice there, ***. The place where I fell wasn't as firm a footing as I had been traveling on before, before I reached that point. *** Yes, sir; the sidewalk slopes at that point. I would say in a sort of southwesterly direction. I had reached almost the end of the building there, the western end of the building. *** Yes, sir; I had passed along there several times and noticed (construction of down-spout) that condition. Well, it...