Beach v. City of Des Moines, 46723.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtSMITH
Citation24 N.W.2d 342
Docket NumberNo. 46723.,46723.
Decision Date17 December 1946

24 N.W.2d 342


No. 46723.

Supreme Court of Iowa.*

Sept. 17, 1946.
Rehearing Granted Dec. 17, 1946.

Appeal from District Court, Polk County; John J. Halloran, Judge.

Action for damages from fall on alleged defective sidewalk. From a judgment on verdict directed at close of plaintiff's evidence she appeals.


Superseding opinion in 21 N.W.2d 677.

Brammer, Brody, Charlton & Parker and Chauncey A. Weaver, all of Des Moines, for appellant.

F. T. Van Liew, B. J. Flick, Paul Hewitt, Harvey Bogenrief, and Vernon R. Seeburger, all of Des Moines, for appellee.

[24 N.W.2d 343]

SMITH, Justice.

On Sunday afternoon, August 16, 1942, shortly before 4:30 o'clock, plaintiff fell on a sidewalk in defendant city. She suffered serious and probably permanent injury. The accident occurred as she was walking eastward on the north side of Clark Street, east of an intersecting alley between sixth and seventh, near where she had lived for several years. It was a bright day and she was admittedly familiar with the condition of the walk over which she had traveled many times. She was alone and claims she was entirely conscious of the defects in the sidewalk as she approached the place where she fell. The walk was dry and she says there was nothing to obscure her vision or divert her attention.

We submit herewith a photograph of the scene taken some days later. It will perhaps serve, even better than oral description, to make the situation clear. When taken the camera was placed 22 feet east of the alley and was pointing west in the direction from which plaintiff came. The small ‘x’ shown thereon and placed there by plaintiff marks the place where she testified her

[24 N.W.2d 344]

right heel slipped into the ‘hole’ or break in the surface of the walk, causing her to fall.


The descriptions of the situation by plaintiff and her witnesses are substantially the same. They all describe the hole or break in the surface of the walk where she fell as being roughly triangular and as extending from the south edge of the concrete walk across about two-thirds of its width. It was located approximately ten or twelve feet east of the alley. The westerly side or edge of the triangle is described as ‘jagged and rough,’ ‘not wholly straight.’ The depth of the hole varied from one and a half to two and a half inches.

The point where she fell was at the northernmost corner or extremity of the triangle. The hole was shallower there than further south. There was a smooth and unbroken surface between it and the north edge of the walk. Grass grew along and somewhat over-lapped this north edge. Plaintiff had customarily walked on and over the narrow smooth part of the walk north of the hole twice daily since December 1, 1939, when she moved into the neighborhood.

No one except plaintiff described the accident. She says:

‘As I was going along the walk, the usual path, almost at the very narrowest portion of the smooth part of the walk, my heel slipped into this hole and caused me to lose my balance and to stumble. I stumbled several times, all the time thinking that I couldn't let this hole get me now after being so careful for more than two years. There wasn't any use. I found myself going down and I threw out my arm to protect my face from possibly broken glasses. I made a three point landing on the sidewalk.

‘I was wearing bifocal glasses. It was the heel of my right foot which went off the edge. * * * My heel went off right at the apex of the hole, right at the narrowest part of the sidewalk.’

She testified she believed that by taking this path of travel she could walk in safety; that she was ‘looking down at the sidewalk * * * for the sake of safety so I could see where I was going.’

On cross-examination she confirmed that she was walking along on the ‘smoothed off’ portion of the walk in her customary manner as she had walked it 1800 times before without falling; that she never stepped in the hole before or walked across it.

‘Q. Right at the point where you were injured there was a smooth part to walk on? A. Yes.

‘Q. And you customarily walked on the smooth part? A. Yes.

‘Q. And you did it all the time you used that walk? A. Yes sir. * * *

‘Q. You might have stepped in this depression or walked across it before? A. If I knew--

‘Q. It was a separate portion that you could walk on right there? A. You could if you knew about it.

‘Q. And you knew about it? A. Yes. * * *

‘Q. You claim your heel slipped off that edge? A. Slipped off the edge of the broken sidewalk.’

She estimated that the smooth part of the walk at the narrowest place was approximately one-third of the whole width of the walk but that the grass along the edge overhung-‘a little more, I think, than three inches.’

There were various grounds urged in the motion for directed verdict but fundamentally they involved only three subjects: negligence, contributory negligence, and proximate cause.

[1] I. There is in the Record ample evidence to support a finding of negligence on the part of defendant-city. The defective condition of the sidewalk, shown by the photograph and the oral testimony, had existed for several years. It was obvious. A jury could find it was known to the proper city officials or had existed such a length of time as to charge them with such knowledge. That the condition constituted a potential danger to pedestrians using the walk and that its permitted existence might under some circumstances constitute actionable negligence is clear.

[24 N.W.2d 345]

[2] But the further burden was on plaintiff to show her injury was proximately caused by the city's negligence and not contributed to by any negligence of her own. These were the propositions upon which the trial court held she had failed to create a jury question.

[3][4] II. It is proper to point out that a plaintiff may in a proper case prove by circumstantial evidence his freedom from contributory negligence. Direct affirmative proof of particular acts constituting due care is not required. ‘It is sufficient if, upon all the facts and circumstances of the case, the jury could reasonably find that plaintiff was exercising the reasonable care of an ordinarily prudent person.’ Gregg v. Town of Springville, 188 Iowa 239, 246, 247, 174 N.W. 23, 25.

We have here a case in which plaintiff was, by her own testimony, thoroughly familiar with the condition of the walk. She was an intelligent, mature person and the Record discloses no physical ailment that would interfere with her ability to walk normally. She was not injured by reason of any hidden defect or any unknown or underestimated danger. She was, under the Record, entirely aware of the existence of the hole. She was looking down at it and had ample room in which to avoid it. The day was bright, she was alone and her attention was not diverted from the business of seeing where she was going.

The undisputed physical fact is that she had approximately one-third of the width of a four foot sidewalk on which to pass-more than a foot of width by her own estimate even at the narrowest point. The smooth and unbroken part of the walk widened rapidly on both sides, east and west, of the apex of the triangle. The walk itself was level and dry and not slippery. There is no suggestion that the side of the hole was treacherous or crumbly or that her heel went into it for any reason except that she stepped there.

[5] It makes no difference, in considering whether she was free from contributory negligence, whether she stepped into the hole intentionally or inadvertently. Mardis v. City of Indianola, 229 Iowa 176, 181-182, 294 N.W. 279.

[6] Plaintiff of course was not guilty of negligence as a matter of law in electing to travel along the north instead of the south side of Clark Street or in assuming to pass along the smooth and unbroken part of the walk between the hole and the north edge. An examination of the photograph shows that the narrow point or angle into which her heel ‘slipped’ could have been avoided by the slightest care on her part. Mardis v. City of Indianola, supra. But the circumstances do not show she exercised such care. She was not deceived or misled in thinking she could proceed in safety. She could have done so by the simple process of not stepping into the one small projecting point of the hole where danger lay.

A large number of cases are cited by appellant which hold in effect that a pedestrian is not as a matter of law guilty of negligence in choosing to walk on a known dangerous walk unless he knows, or should in the exercise of ordinary care for his own safety know, that it is imprudent for him to attempt to pass over the same. They further hold that if there is evidence tending to prove he proceeds thereafter with care but is nevertheless injured, the question of freedom from contributory negligence is for the jury.

These cases are of two kinds: (1) Those in which the condition was due to ice or snow allowed to become rough or ridged and uneven and dangerous by reason of travel or the action of the elements; and (2) those in which the walk had become out of repair and had deteriorated so that there were hidden and unexpected defects and dangers.

Templin v. City of Boone, 127 Iowa 91, 94, 95, 102 N.W. 789, and Geagley v. City of Bedford, 235 Iowa 555, 561, 16 N.W.2d 252, fairly illustrate the snow and ice cases. Neeley v. Town of Mapleton, 139 Iowa 582, 117 N.W. 981;Hoover v. Town of Mapleton, 110 Iowa 571, 81 N.W. 776;Robertson v. City of Waukon, 138 Iowa 25, 115 N.W. 482; and Jackson v. City of Grinnell, 144 Iowa 232, 122 N.W. 911, are

[24 N.W.2d 346]

examples of the second class above mentioned.

The thought running through all such cases is that while plaintiff may have knowledge of the general condition of the walk he may not know the particular defect or condition that causes his injury. See Robertson v. City of Waukon, 138 Iowa 25, 115 N.W. 482;Bailey v. City of Centerville, 115 Iowa 271, 88 N.W. 379;Thompson v. City of...

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