Balcom v. City of Independence

Decision Date13 December 1916
Docket Number29983
Citation160 N.W. 305,178 Iowa 685
PartiesCHARLES O. BALCOM, Appellant, v. CITY OF INDEPENDENCE, Appellee
CourtIowa Supreme Court

Appeal fro Buchanan District Court.--F. C. PLATT, Judge.

ACTION to recover for personal injury of plaintiff, charged to be due to negligence of defendant. A verdict was directed against plaintiff on the ground that the defendant was not negligent, and that the plaintiff was guilty of contributory negligence. Plaintiff appeals. Reversed and Remanded.

Reversed and Remanded.

Cook & Cook, for appellant.

Chappell & Todd, for appellee.

SALINGER J. EVANS, C. J., LADD and GAYNOR, JJ., concur.

OPINION

SALINGER, J.

I.

Main Street in the defendant city is a paved street 80 feet wide and runs east and west. Fourth Avenue crosses it. On the day of the accident, the city began a ditch at the intersection of Fourth Avenue and Main Street, running south from the south line of that street on Fourth Avenue for something like a block. It was some 7 feet deep, and of sufficient width to enable defendant to extend its water mains. Plaintiff is blind, and walked by the aid of tapping in front of himself with his cane. As he was walking along the south line of Main Street, and when he reached the point where the ditch began, he fell into the same and was injured. At the time of the accident, no one was near the south line of Main Street, where the ditch began, and the nearest workman was about a block south of that point. At the point where the accident occurred, the ditch was not guarded by barriers nor in any other way. It is, however, true that the end of the ditch was far enough to the south so that, if plaintiff had crossed Fourth Avenue at its intersection with Main Street, without deviating from an exact line east and west, he would have kept to the north end of the ditch and have passed in safety.

Appellee says, in support of the ruling directing verdict, that, if plaintiff sustained any injury, "it was caused by his deviating from the pavement, especially laid for foot passengers," and that, if he had kept on the pavement, he would not have fallen into the ditch. That is true. It is equally true, however, that, if the city had put some boards across the ditch for a distance of 5 or 6 feet south of the south line of Main Street, or erected almost any sort of a barrier on the south line of the street and across the north end of the ditch, then, no matter how much plaintiff had in reason deviated from walking exactly east, he could not have fallen into the ditch.

II. We concede that a verdict finding that defendant was not negligent could have been sustained. But what we are concerned with is whether the trial court was justified in so finding, as matter of law.

Whenever there may be a reasonable difference of opinion as to the inferences and conclusions to be drawn from the facts, there is a question for the jury. It is to draw the conclusions from both disputed and undisputed facts. Beach, Contributory Negligence (3d Ed.), Sec. 450.

We say, in Hunter v. Colfax Cons. Coal Co., 175 Iowa 245, 157 N.W. 145, 154 N.W. 1037, "there cannot be contributory negligence unless there be negligence to contribute to." Whenever, then, we have ruled that it was a jury question whether one injured by an obvious defect was guilty of contributory negligence, we have, of necessity, held that it was a jury question whether the creation of such defect constituted negligence.

On this reasoning, we have held the question of negligence to be for the jury: where the defect was a spike protruding from a plank in a sidewalk some 1 1/2 or 2 inches (Rusch v. City, 116 Iowa 402, at 403); where a sidewalk was obstructed by planks kept there for some 5 minutes, and which rose some 5 or 6 inches above the level of the walk (Kaiser v. Hahn, 126 Iowa 561, at 562); where tracks were laid in a public street with the space between the main rail and guard rail wider than is usual or necessary, without properly filling below the balls of the rails, so that a foot was crushed before it could be extricated from between these rails in which it had been caught (Goodrich v. Burlington, C. R. & N. R. Co., 103 Iowa 412, 72 N.W. 653); where there was a defect into which plaintiff fell because he slipped (Kendall v. City, 73 Iowa 241, at 248); where the sidewalk was "badly out of repair" (Sachra v. Manilla, 120 Iowa 562, at 568, 95 N.W. 198); where the injury resulted because one walking with the plaintiff stepped upon and raised a loose board (Barnes v. Town, 96 Iowa 675, 681; Bailey v. City of Centerville, 115 Iowa 271, at 272, 88 N.W. 379); where several boards were out of place, a number were out and some of them loose, and their looseness was noticeable (Cox v. City, 111 Iowa 646); where a hole in a plank walk was made by the breaking out of one plank, and plaintiff fell into the hole because his foot slipped (Brown v. Incorporated Town, 122 Iowa 640, at 642); in a case of a hole in a crossing, which crossing was a walk about 3 feet wide, of boards some 2 inches thick and 12 inches wide, and about 8 feet of the middle board was broken and removed, so that, at about the middle of the broken space, there was a hole or depression between the two outside boards, variously estimated by the witnesses as from 2 to 12 inches in depth, and the accident occurred after nightfall (Nichols v. Incorporated Town, 96 Iowa 388, at 392); where the walk was of brick, in which many bricks were out of place, and in which several holes had been dug, the particular hole into which plaintiff's foot slipped as she stepped on a brick next to it being about a foot in diameter and 3 or 4 inches deep (Houseman v. City, 124 Iowa 510, 100 N.W. 343). This case holds further that, if a slip throws one into a defect that would have done no harm had there been no slip, it does not settle as matter of law that there was contributory negligence. And see Nichols v. Incorporated Town, 96 Iowa 388, at 392; Brown v. Incorporated Town, 122 Iowa 640, at 642; Kendall v. City, 73 Iowa 241, at 248. As pointed out in Rusch v. City, 116 Iowa 402, at 403:

"Few of the thousands using sidewalks would be likely to think of defects (such as a spike protruding some 2 inches). Pedestrians intent on other matters, and looking out for their general course, usually act on the presumption that the city has performed its duty, and is maintaining its streets in a reasonably safe condition. While bound to make use of their senses and exercise the caution ordinarily displayed by persons of prudence, they are not required at their peril to discover every defect, even though open and visible."

In Kaiser v. Hahn, 126 Iowa 561, it was held matter for consideration that one injured by planks 6 inches thick lying across the walk, was dazzled by the sun shining in her eyes and on the planks, and for that reason did not see them, and that it was properly left to the jury whether, under the circumstances, plaintiff was guilty of contributory negligence.

2a.

So far as these cases rule, plaintiff needs no aid from his blindness. We fail to see any substantial distinction between the obviousness of planks 5 or 6 inches thick lying across a walk, or large holes in the same, and a narrow open ditch beginning on the line of a walk and so close to it as that the slightest failure in concentrating thought upon the walk, or diversion, or the slightest deviation from walking in an exactly straight line, will cause the passerby to fall into it. A decision that falling over a perfectly obvious obstruction may be found not to constitute contributory negligence, though it was possible to avoid the fall, holds, of necessity, that one who digs a pit into which another falls, might be found guilty of negligence, though absolute care would have avoided falling into same. In other words, we seem fairly to have held what warrants the conclusion that putting this ditch in that place, without guard or protection of any sort, would leave negligence at least a question of fact, if plaintiff had not been blind. And if this is so as to those who can see, it certainly was not less negligent because its consequence was to injure a blind man. If the care used will not, as matter of law, protect the city from responding to those who are not blind, of course it at least remained a jury question whether such care was sufficient to protect the blind.

Another line of reasoning re-enforces this position: It should not be disputed that the city was bound to do what in reason would make it safe for those not blind to pass over this walk on a dark night. If one not blind had fallen into this ditch because it was left without light or barrier on a dark night, it should not be denied that the absence of light at least made a jury question on whether there had been negligence. And yet one who has eyesight is, in the case suggested, blind. To be sure, the light would not promote the safety of a blind man; but that is adventitious. We shall have occasion to discuss whether the same acts will constitute ordinary care as to the blind as well as the seeing. It suffices to say, for present purposes, that, while requiring a light for him who can see when there is a light, proves that there is a duty to protect those who for any reason cannot see, it does not follow that, because one precaution will save harmless those who are only temporarily without sight, there may be omitted that which will as effectively protect those who can never see. Concede that there is a duty to protect those who for any reason cannot protect themselves by the use of sight, and you admit a duty to do that which will effectuate protection, without reference to why sight will not afford protection. Concede that there must be a light for those who...

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