Bailey v. City of Le Mars

• Decision Date: 02 October 1920
• Docket Number: 33302
• Citation: 179 N.W. 73,189 Iowa 751
• Parties: LILLIE BAILEY, Appellee, v. CITY OF LEMARS, Appellant
• Court: Iowa Supreme Court

179 N.W. 73

189 Iowa 751

LILLIE BAILEY, Appellee, v. CITY OF LEMARS, Appellant

No. 33302

Supreme Court of Iowa, Des Moines

October 2, 1920

Appeal from Plymouth District Court.--WILLIAM HUTCHINSON, Judge.

ACTION to recover damages for injuries alleged to have been caused by a defective sidewalk. Trial to a jury, and verdict and judgment for plaintiff. Defendant appeals.

Affirmed.

Nelson Miller, for appellant.

Roseberry & Roseberry, for appellee.

PRESTON J. WEAVER, C. J., EVANS and SALINGER, JJ., concur.

OPINION

PRESTON, J.--

1. Plaintiff claims to have caught the heel of her shoe on the jagged and overhanging edge of a defect in a cement sidewalk as she was walking south, after dark. Her evidence tends to show that she was violently thrown forward to the pavement which caused a miscarriage, and injuries to her limb, arm, side, pelvis, and the reproductive organs. In addition to the general verdict, the jury returned answers to interrogatories, which we understand to have been submitted by the defendant, as follows:

"1. Was the city negligent because of the existence of the break in the sidewalk involved in this case? Answer. Yes.

"2. How much higher, if any, was the edge of the walk south of the break than the edge of the walk north of the break? Answer. One inch.

"3. What was the depth of the break below that portion of the walk which lay north of the break? Answer. One and three-fourths inches."

The issues, as stated by appellant, and adopted by appellee, were whether the defect in the walk was of such a character that it could be said to be negligence in the city to permit it to exist; whether the accident actually happened; and whether the walk was in a reasonably safe condition. As to whether the injury occurred, we think there is no dispute in plaintiff's evidence, and we understand appellant to so concede, in connection with their argument as to whether the motion for a new trial should have been granted on the ground of newly discovered evidence, which will be referred to later. As to the other two propositions, appellee contends that it was a question for the jury as to whether the defect in the walk constituted negligence, and whether it was in a reasonably safe condition; while appellant contends that, as a matter of law, the walk was in a reasonably safe condition, and that there was no negligence. We insert here a photograph, which was introduced in evidence.

[SEE PHOTOGRAPH IN ORIGINAL]

The evidence of the photographer does not show the position of his instrument, but it seems to be conceded in argument that the view in the photograph is looking south, the direction in which plaintiff was walking. She was walking on the inside of the walk: that is, the side towards the buildings. The photograph was taken in March, 1917, about three months after the injury, which was on December 23, 1916. According to the evidence, the walk was covered with snow, a part of the time during the winter, and it is not claimed there was any material change in the walk in that time, although it appears that there was a change, and that the depression was deeper, when some of the measurements were made by defendant, some, a year, and some, two years, after the accident. The trial was had in 1919. It is not seriously disputed, if, indeed, there is any dispute in the evidence, that the south edge of the break, the edge against which plaintiff caught her foot, is higher than the north edge, and that the south edge was the broken edge of the break, and had been raised up above the original level of the walk. The evidence tends to show that the cement under the top hard surface had rotted away back under the edge. It is thought by appellant that the special findings of the jury are not sustained by the evidence. We think they are. True, there is a conflict in regard to this between the witnesses for plaintiff and those for defendant. Plaintiff testifies that, after she fell, she lay there a few minutes; that it knocked the breath out of her, and made her feel faint; that, while she was down on the walk, she put her hand down and felt the walk, and estimates the depth at 3 1/2 inches, by the measurement of her finger; that she didn't feel the bottom; that it went kind of under; that she simply reached over, to see what caused the fall; that she never saw the broken place in the walk. There is evidence that there is a tree, practically opposite the hole, and an electric light in the center of the street intersection, and that these caused a shadow across the defective walk. A witness who was a carpenter, and testifying for plaintiff, says he measured the defect in the walk in March, 1917; that, at that time, the narrowest place was 6 inches wide, and the widest, 14 inches; that the shallowest place was 1 inch deep, and the deepest, 2 inches, and that the walk is 1 inch higher on the south side than on the north; that the hole was deepest in the center, and sloped gradually to the sides. Other witnesses give their estimates of the depth, some from observation, and some from measurements, but at different times. There is evidence tending to show that there was sand and debris in the hole, which would somewhat affect the measurements, and that it would depend somewhat on the precise place where the measurement was made, since it was not the same clear across. Some of the witnesses, however, say that there was no debris in the hole. There is evidence that the south edge of the break was rough and jagged, with projections of about three fourths of an inch. Plaintiff testifies that it was her heel that caught, and not her toe; that she caught her foot under the broken walk; that "my heel didn't break loose, but it just scraped the heel; it is like it caught when I was raising my foot up, not when I was setting it down;" that she examined it, and it was "kind of under a bit, and there was where I caught my heel." Her shoe was examined, after she returned home, and it showed that the walk had scraped the heel; that there was a small crumb of cement on the heel. We deem it unnecessary to go into the evidence in further detail. It was shown by the evidence that this defect was a short distance from the business part of town, extensively traveled, and had existed for a year or a year and a half prior to the accident. It is shown that another party tripped at this same point, but it is not claimed that actual knowledge thereof was brought home to the city.

Appellant cites numerous cases from other jurisdictions where it has been held that a break in the surface, of 2 or 3 inches, is in a reasonably safe condition, as a matter of law, and that there was no negligence. The Iowa case relied upon is Johnson v. City of Ames, 181 Iowa 65, 162 N.W. 858. That case was distinguished in Welsh v. City of Des Moines, (Iowa) 170 N.W. 369 (not officially reported). The same distinction may be made in the instant case. The facts in the instant case are more nearly like the Welsh case. We think the instant case is ruled by the Welsh case. In the instant case, it is not so much a question as to the depth of the hole, but is a question whether the hole was dangerous because of the condition of the jagged, overhanging edge, and the other circumstances. See, also, Geer v. City of Des Moines, 183 Iowa 837, 167 N.W. 635.

The trial court did not err in submitting the case to the jury.

2. Appellant states in argument that, at the trial, defendant had no evidence whatever going directly to disprove that the plaintiff suffered any injury at the point in question, and that the newly discovered evidence went directly to that point. Defendant filed, as a part of the motion for new trial, the affidavit of one Barnes, in which it is stated that, about 8 o'clock in the evening of December 23d, he was passing south, along the walk in question, and saw a woman with two children, passing south at a point described which would be at the place in question; that she was about 100 feet ahead of...