Batie v. City of Humboldt

• Decision Date: 18 June 1940
• Docket Number: 45265.
• Citation: 292 N.W. 857,228 Iowa 528
• Parties: BATIE v. CITY OF HUMBOLDT.
• Court: Iowa Supreme Court

292 N.W. 857

228 Iowa 528

BATIE v. CITY OF HUMBOLDT.

No. 45265.

Supreme Court of Iowa.

June 18, 1940

Appeal from District Court, Humboldt County; F. M. Hudson, Judge.

Action for damages for injuries sustained by plaintiff when she fell upon a street crossing in defendant city. Defendant's liability was predicated upon its alleged negligence. At the close of plaintiff's evidence a verdict was directed against her. From the judgment thereon she has appealed.

Affirmed.

Mitchell & Loth, of Fort Dodge, and Franklin Jaqua, of Humboldt, for appellant.

Price Rider & Keefe, of Fort Dodge, for appellee.

RICHARDS, Justice.

In her petition plaintiff alleged that at 3 P. M. on January 13 1939, she sustained physical injuries by falling while traversing afoot a street crossing in defendant city; that by reason of rain and snow falling, thawing and freezing, and the passage of vehicles and other interferences with its natural condition, the crossing had become so rough, irregular, rutted, uneven, and slippery as to be extremely dangerous and unsafe for pedestrians; that defendant city had time to know of this condition and did know but failed to remedy or ameliorate it or to make the crossing reasonably safe; that defendant negligently permitted said dangerous condition to arise and continue without using due care to make the crossing reasonably safe, and without removing any of the roughened ice and snow or safeguarding it with sand, gravel or similar substance, or otherwise providing a safe crossing. Defendant answered, making a general denial. Upon the trial defendant moved for a direct verdict at close of plaintiff's evidence. It was sustained, a verdict accordingly, and a judgment rendered against plaintiff. Therefrom she has appealed.

The Court sustained the motion upon the third ground thereof. What appears to be the substance of that ground is the following. " 3. It appears without dispute; (a) the defect was not the result of any act of the city, but of the elements; (b) because of that the only negligence of the city would be its failure to remedy the defect after notice, actual or constructive; (c) there is no evidence that any city official in any capacity had any notice or knowledge of the defect at the point of the accident; (e) there is no evidence how long prior to the accident this condition existed. Because of continued rain and snow almost of the time of the accident, conditions in the street were constantly changing. * * * (f) The rain and snow continued at least till 12:30; the accident occurred not later than 3:30; and the intervening three hours is wholly insufficient as a matter of law for the presumption of constructive notice to have arisen."

Appellant assigns as error the sustaining of the motion and urges that the third ground did not warrant the ruling. In the assignment she states her reasons as follows: " This was error because (a) The dangerous condition existed for about 8 hours, and the only excuse for not sooner remedying it was the continued snowfall; (b) the jury could find that the city must have known or anticipated that this very danger would arise not later than the cessation of the snowfall, and this afforded over three hours in which to perform the slight act necessary to ameliorate it by sanding the crossing; (c) the jury could find that under the circumstance the prompt performance of that act was necessary to the city's use of reasonable care toward this particular crossing. These are questions for the jury, not the court."

Turning to the record, the following matters were shown by the evidence that plaintiff introduced. Plaintiff, aged 71 years, fell as she was crossing Summer Avenue at the intersection of that avenue with Sixth Avenue. Proceeding south, she had walked into the street about ten feet from the place where she left the sidewalk. This intersection was in the business area of defendant city. On January 12, 1939, the streets at the intersection were dry and had been swept with hand brooms. On January 13, 1939, the date of plaintiff's accident, snow was falling as early as 3 A. M., and thereafter it continued to fall until noon, with intermittent mist at times during the forenoon. At 4 A. M. the street commissioner began operating a grader on the streets, for snow removal. From that hour until 7 A. M. he went back and forth with the grader across the intersection where later plaintiff fell. The grader...