Anderson v. Sioux City

• Decision Date: 06 February 1951
• Docket Number: No. 47788,47788
• Citation: 242 Iowa 139,45 N.W.2d 845
• Parties: ANDERSON v. SIOUX CITY.
• Court: Iowa Supreme Court

Page 845

45 N.W.2d 845

242 Iowa 139

ANDERSON v. SIOUX CITY.

No. 47788.

Supreme Court of Iowa.

Feb. 6, 1951.

M. E. Rawlings and Geo. F. Davis, of Sioux City, for appellant.

Clem & Miller, of Sioux City, for appellee.

MULRONEY, Justice.

Mr. Mary Anderson broke her leg when she fell on an ice covered sidewalk in the business section of Sioux City. In her suit against the city she recovered a judgment in the sum of $510.20. The errors relied upon in the city's appeal are (1) that the evidence shows plaintiff guilty of contributory negligence as a matter of law and (2) plaintiff failed to establish the city was negligent. These were the two grounds of the city's motion for directed verdict which the trial court overruled.

Plaintiff who was 29 years of age lived in Sioux City, Iowa. She testified as follows: About 6:30 P.M. on January 3, 1949 she came out of a restaurant located on the west side of Pearl Street between Fifth and Sixth Streets. She walked north and started across an alley that crosses the sidewalk. It had been raining all day and about 3 o'clock it had started to snow. The sidewalk where it was crossed by the alley was rough and ridged and there were lumps and bumps and holes where people had been crossing. She was wearing rubbers or zippered boots and she was walking slowly and looking where she was going. She had no walked over this crosswalk prior to January 3d. As she took a step into the alleyway crossing she stepped on the ridges and lumps and fell and broke her leg. She tried to get up but fell again and in a moment a passerby, Mr. Streeter, hearing her call for help came to her assistance. When Mr. Streeter had helped her up plaintiff's husband arrived and plaintiff was taken to the hospital.

Mr. Streeter testified that he saw her fall, heard her cry for help, and helped her up. He said that at the time she fell the crosswalk cross the alley where she had fallen was icy and rough and that there were no ashes, sand or gravel on the crosswalk when she fell. He also testified that the week before when he last had occasion to walk over this crosswalk it was icy and rough from people walking and cars passing over it. He aid it had rained some during the day but it was snowing at the time she fell.

Plaintiff's husband testified that at the time his wife fell the crosswalk was icy and very rough and irregular; that two or three days before when he had last walked that way the crosswalk was covered with frozen ice that was rough and irregular from people and automobiles traveling over it; and that for two or three weeks there had been rough ice on the crosswalk. He also said there were no ashes, sand or gravel on the crosswalk.

The weather bureau summaries show there had been about three inches of snow in approximately the two week period before January 3d and alternately freezing and thawing temperature. December 28th was the last day the temperature rose above freezing until January 3d and on the latter day it rose above freezing at 10 A.M., and it remained above freezing for the remainder of that day.

The city's evidence consisted of the testimony of its street foreman who merely testified that he had a crew of five or six men who started out early every day to clean or sand such crosswalks in the business district. He said he made the rounds of the business district every day to see the condition of the sidewalks. He was unable to say that he had seen any sand on the crosswalk in question. His evidence was merely that if the crosswalk needed sanding it would have been done if his crew did what they were supposed to do.

The city's other witness was a highway patrolman who took plaintiff to the hospital. He merely said it had rained most of the day but it turned to snow in the evening and when he took plaintiff to the hospital the streets were becoming slick.

I. The foregoing is the entire record of testimony. The city's argument under the first assignment of error starts with an argument that plaintiff knew or is charged with knowledge of the dangerous condition of the crosswalk. The city admits such knowledge will not conclusively convict her of contributory negligence. The city recognizes and cites the rule of Beach v. City of Des Moines, 238 Iowa 312, 26 N.W.2d 81, 87: '* * * that knowledge of defects in a sidewalk, alone, is not sufficient to bar a pedestrian of recovery for injuries caused by such defects. It must also be shown that the injured person knew, or as an ordinarily prudent and careful person should have known, that it was imprudent to try to pass over the sidewalk.'

The city also quotes the test laid down in Geagley v. City of Bedford, 235 Iowa 555, 16 N.W.2d 252, 256, as follows: 'The test seems to be whether a plaintiff, knowing...