Beach v. City of Des Moines, 46723.

• Court: United States State Supreme Court of Iowa
• Writing for the Court: MULRONEY
• Citation: 21 N.W.2d 677
• Parties: BEACH v. CITY OF DES MOINES.
• Docket Number: No. 46723.,46723.
• Decision Date: 10 May 1946

21 N.W.2d 677

BEACH
v.
CITY OF DES MOINES.

No. 46723.

Supreme Court of Iowa.

Feb. 5, 1946.
Rehearing Granted May 10, 1946.

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

Suit for damages for injuries sustained by plaintiff who fell upon a defective sidewalk. Judgment for the defendant city was directed at the close of plaintiff's evidence. Plaintiff appeals.

Affirmed.

BLISS, C. J., and GARFIELD and OLIVER, JJ., dissenting.

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.

MULRONEY, Justice.

The plaintiff, an employee in the Vocational Educational Department of the Office of the State Superintendent of Public Schools, made her home at 715 Clark Street in the City of Des Moines. To go to and from the 6th Avenue bus stop she would travel upon the sidewalk in front of her home leading east to Sixth Avenue. On Sunday, August 16, 1942, while she was walking along the sidewalk toward Sixth Avenue, she fell at a place where the sidewalk was defective and she was seriously injured. In her suit against the city she alleged her injuries were proximately caused by defendant's negligence and that she ‘was free from any negligence contributing thereto.’ At the close of plaintiff's testimony the trial court directed the verdict in favor of defendant chiefly upon the ground that she ‘failed to establish that she was free of all contributory negligence in respect to her injury’ and ‘that the evidence affirmatively shows she contributed to her own injury by her own negligence and acts and conduct which was the proximate cause of her claimed injury.’ Her appeal, asserting error in the trial court's ruling upon the motion for directed

[21 N.W.2d 678]

verdict, compels an analysis of the testimony.

The photograph of the sidewalk, taken in September, 1942, which was introduced in evidence at the trial, is reproduced herewith.

IMAGE

The sidewalk is along the north side of Clark Street and the view is looking west. Plaintiff was walking east toward the next intersection, or Sixth Avenue. In the photograph appears a small ‘x’ placed there by the plaintiff as identifying the place where her right heel slipped into the depression causing her to stumble and fall. The record shows that August 16th was a bright sunny day and plaintiff was walking east along this sidewalk shortly before 4:30 in the afternoon. The sidewalk was dry. She stated there was nothing that would obscure her vision or distract her attention. She was thoroughly familiar with the sidewalk. She stated that she had walked over it about twice daily for over two years and that the estimate of 1,880 trips over this walk in the two years or more she had lived on Clark Street was correct. She testified without objection that she believed ‘that by taking this path of travel (along

[21 N.W.2d 679]

the north or smoother side) she could walk safely along the walk.’ She was asked to tell the jury what happened on this particular afternoon and she replied:

‘Well 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 having been 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 stated that the triangular hole in the sidewalk was from an inch and a half to two and a half inches deep along the westerly edge, and the apex where her heed slipped off was shallower than the south end of the depression. The east edge of the hole was not as deep as the west edge. She estimated that her heel, when it slipped into the depression, went down an inch and a half. The sidewalk was four feet wide. She testified that the smooth part of the sidewalk along the north was approximately one-third of the whole width of the walk. There was some overgrowth of grass along the north edge. She testified that she was looking down at the sidewalk as she walked along:

‘Q. And you claim that in some manner, which you cannot explain now, that your foot, your right heel slipped off the edge of that sidewalk where it was scaled off and that caused you to stumble? A. Yes.

‘Q. Before you took the step that brought you to the edge of the hole you actually saw the hole? A. Yes.

‘Q. And notwithstanding that fact you made that step, and that is the step that put you on the edge of the hole and from which you slipped into the hole? A. Yes.

‘Q. You weren't thinking about anything else walking along the street? A. Nothing on my mind, no.’

I. Plaintiff argues that the question of her freedom from contributory negligence was for the jury because the record shows her testimony that she believed it was safe for her to walk along this defective sidewalk and get by this hole or depression. A second question upon redirect examination as to her belief in this regard was objected to as leading and the objection was sustained. Plaintiff asserts error in this ruling. Any error that might exist in such ruling was without prejudice for the question had been earlier answered without objection in her direct examination.

[2] Plaintiff had the burden of proving freedom from contributory negligence. She does not, in her argument, point to any evidence which would tend to sustain her burden. Her testimony establishes that on a clear day, on a sidewalk she was very familir with, she walked over the edge of a depression of an inch and a half which she saw before she took the step that brought her to the edge of the depression. The gist of plaintiff's argument is that her burden with respect to proving freedom from contributory negligence is sustained by the testimony that she believed she could walk safely by the defect or depression in the walk. Plaintiff states in argument:

‘Time after time this court has enunciated and affirmed the doctrine in personal injury cases, that if the pedestrian litigant believed that he or she could cross the icy expanse, or traverse the questionable looking walk in safety-their right of action cannot be assailed; and that their action in so doing does not involve a question of law, but one of fact for jury determination.’

For authorities plaintiff cites: Templin v. City of Boone, 127 Iowa 91, 102 N.W. 789;Robertson v. City of Waukon, 138 Iowa 25, 115 N.W. 482;Tollackson v. City of Eagle Grove, 203 Iowa 696, 213 N.W. 222; Code Section 5945 (1939); Staples v. City of Spencer, 222 Iowa 1241, 271 N.W. 200;Hoover v. Town of Mapleton, 110 Iowa 571, 81 N.W. 776;Bailey v. City of Centerville, 115 Iowa 271, 88 N.W. 379;Neeley v. Incorporated Town of Mapleton, 139 Iowa 582, 117 N.W. 981;Jackson v. City of Grinnell, 144 Iowa 232, 122 N.W. 911;Hollingsworth v. City of Fort Dodge, 125 Iowa 627, 101 N.W. 455;Graham v. Town of Oxford, 105 Iowa 705, 75 N.W. 473;Crandall v. City of Dubuque, 136 Iowa 663, 112 N.W. 555, and Thompson v. City of Sigourney, 212 Iowa 1348, 237 N.W. 366;Geagley v. City of Bedford, Iowa, 16 N.W.2d 252.

[21 N.W.2d 680]

[3][5][6] We have examined all of these cases. These authorities and many other Iowa decisions which plaintiff could have cited would be authority for the well established rule that the mere fact that a pedestrian attempts to pass over a known defective place in a sidewalk will not of itself constitute contributory negligence if the pedestrian believed he could pass the defective or hazardous place in safety. In other words, knowledge of a defect will not establish contributory negligence as a matter of law if the pedestrian believed he could pass over it in safety. But no case holds that knowledge of a defect plus a belief it could be traversed in safety is evidence of freedom from contributory negligence. We are not directed to any other portion of the testimony which would, in plaintiff's opinion, make a jury question on the issue of contributory negligence. We have studied the record and we cannot find any evidence at all which would tend to show her freedom from contributory negligence. Contributory negligence is nearly always a question for the jury, but plaintiff was not relieved of her burden of introducing testimony showing her due care by proof that she believed she could walk by the defect in safety. Her story that she walked over the edge of a known depression of an inch and a half, that she was looking at it as she walked along, creates no jury question on the issue of her freedom from contributory negligence. The case is much stronger on the facts than Cratty v. City of Oskaloosa, 191 Iowa 282, 182 N.W. 208 and Lundy v. City of Ames, 202 Iowa 100, 209 N.W. 427, where we affirmed directed verdicts on similar grounds. See also Mardis v. City of Indianols, 229 Iowa 176, 294 N.W. 279;Gibson v. City of Denison, 153 Iowa 320, 133 N.W. 712, 38 L.R.A.,N.S., 644; Marshall v. City of Belle Plaine, 106 Iowa 508, 76 N.W. 797.

Because we believe the trial court was right in directing the verdict on the grounds indicated it is unnecessary to discuss his rulings upon other grounds of the motion.

Affirmed.

HALE, MANTZ, SMITH, MILLER, and WENNERSTRUM, JJ., concur.
BLISS, C. J., and GARFIELD and OLIVER, JJ., dissent.

BLISS, Chief Justice (dissenting).

I dissent from the majority opinion because it affirms a judgment of the trial court based upon a ruling which, in my judgment, was a clear invasion of the province of the jury. It is fundamental that in passing upon the court's order directing a verdict against the plaintiff this court must view the...