Ahern v. City of Des Moines

• Decision Date: 14 December 1943
• Docket Number: 46331.
• Citation: 12 N.W.2d 296,234 Iowa 113
• Parties: AHERN v. CITY OF DES MOINES.
• Court: Iowa Supreme Court

12 N.W.2d 296

234 Iowa 113

AHERN v. CITY OF DES MOINES.

No. 46331.

Supreme Court of Iowa

December 14, 1943

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

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 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 was not very far above the sidewalk, that is, the spout.

"Q. And calling your attention to the condition that you have described on that sidewalk, or being covered with snow, rough snow and ice, state whether or not that condition existed prior to January 16, 1941, as you observed it? A. Yes, sir; it had. *** Well as I recall it at least a month possibly longer."

On cross examination the appellee testified in part:

"*** I was going very slowly, step by step, I wasn't trying to walk like a person would naturally walk on the street if there was no ice on it.

"Q. It was a very icy condition and you observed that all over the city? A. That is true."

Appellee's testimony also showed that he had been over the walk in question on numerous occasions and while there was snow and ice on it.

Appellee's Exhibit 10, which is herein set forth, discloses the extent of the slope of the sidewalk, the location of the down-spout on the building, and the opportunity for drainage from this spout onto the sidewalk.

RPT.CC.1944104322.00010

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I. The initial contention of the appellant is that the trial court erred in overruling its motion for a directed verdict for the reason that the appellee failed to establish his freedom from contributory negligence. We have heretofore set out portions of appellee's testimony relative to the circumstances and situations present at the time of his fall. With this testimony in mind we believe that the statements found in our holding in the case of Tillotson v City of Davenport, Iowa, 4 N.W.2d 365, 366, are applicable. We there said: "It is well settled that mere knowledge that a walk is dangerous, unsafe for travel, is not sufficient to establish contributory negligence though there is another way that is safe and convenient, and to defeat recovery it must appear that the traveler knew or as an ordinarily cautious person should have known that it was imprudent to use the walk. ***"

In this same case we also said: "Though plaintiff knew the walk was defective, unless it was imprudent for her to use the sidewalk at the time in question she was not bound to take the safe way ***"

It cannot be said that appellee did not exercise care to avoid injury. The question of contributory negligence was properly submitted to the jury. The facts in the cited case are quite similar to the present case. The testimony of appellee heretofore quoted shows that he was using care in walking upon the sidewalk and the ice and snow thereon. It is our conclusion that under our holdings the court properly submitted to the jury the question whether or not the appellee was guilty of contributory negligence in that it was imprudent for him to walk where he did under all the circumstances. Franks v. Sioux City, 229 Iowa 1097, 296 N.W. 224; Smith v. City of Hamburg, 212 Iowa 1022, 237 N.W. 330; Burke v. Town of Lawton, 207 Iowa 585, 223 N.W. 397; Sloan v. City of Des Moines, 205 Iowa 823, 825, 218 N.W. 301; Tollackson v. City of Eagle Grove, 203 Iowa 696, 213 N.W. 222; Travers v. City of Emmetsburg, 190 Iowa 717, 180 N.W. 753; Fosselman v. City of Dubuque, 211 Iowa 1213, 233 N.W. 491. For further citations of Iowa authorities bearing upon the question here commented upon, see cases here cited. We do not believe the cases cited by the appellant under the factual situation presented in the instant case are applicable.

II. The appellant claims that there was error on the part of the trial court in its failure to sustain its motion for a directed verdict for the reason that appellee's petition alleged that the city had negligently permitted the accumulated ice to remain upon the sidewalk, whereas it is claimed that the appellee's testimony was to the effect that he fell and remained in a...