Beach v. City of Des Moines

• Decision Date: 11 February 1947
• Docket Number: 46723.
• Citation: 26 N.W.2d 81,238 Iowa 312
• Parties: BEACH v. CITY OF DES MOINES.
• Court: Iowa Supreme Court

26 N.W.2d 81

238 Iowa 312

BEACH v. CITY OF DES MOINES.

No. 46723.

Supreme Court of Iowa

February 11, 1947

Rehearing Denied April 11, 1947.

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

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

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

BLISS Justice.

This opinion supersedes those in 21 N.W.2d 677 and 24 N.W. 342. A rehearing was granted on each of these appeals and the opinions therein were set aside.

The plaintiff, a maiden lady, had made her home at No. 715 on the north side of Clark Street just west of Seventh Avenue in the defendant city, from December 1, 1939, until August 16, 1942. Clark Street extends east and west and is intersected at right angles by Sixth Avenue and Seventh Avenue. In going to her daily work and to church on Sunday, she would walk from her home eastward, on the sidewalk on the north side of Clark Street, across Seventh Avenue, and then east to Sixth Avenue, where she would take a south-bound curbliner bus at the northwest corner of the intersection of Clark Street and Sixth Avenue. In returning home she would get off the bus at the southeast corner of the intersection and cross to the northwest corner and go west on the sidewalk on the north side of Clark Street. She conceded that she may have passed over the defective sidewalk 1800 times while living on Clark Street.

In passing upon the court's direction of the verdict we view the evidence in the light most favorable to appellant. There is nothing inherently improbable or unbelievable in the evidence, and it and all reasonable inferences therefrom must be accepted at their face value in determining whether the appellant made a case submissible to the jury. There is no contradiction of evidence offered in her behalf.

Appellant was severely and permanently injured. Her left hip and left forearm were broken. She was in a hospital several months. She was still suffering much pain at the time of the trial over two years after the injury. She was unable to work for a long time. She will always need artificial aid in walking. The traumatic arthritis in her left hip will become progressively worse.

A photograph of the sidewalk showing where appellant fell and a view along it to the westward on Clark Street is here reproduced:

RPT.CC.1947104425.00010

(Image Omitted)

The top of the photograph, at the top of the page, is west on the ground, the bottom is east, and the right side is north. The photograph confirms the description of the defective sidewalk as given by the appellant and her witnesses. The cement slab of the walk was four feet wide. The north-south alley, is shown a short distance east of the fence. About six feet east of the alley was a break in the sidewalk--a rectangular hole, about two feet by a foot and a half, in the south half of the walk. East of this hole was another break in the sidewalk. It approximated roughly in outline an equilateral triangle with a three-foot base on the south line of the sidewalk, and its bulging sides culminated in an apex sixteen inches or less from the north line of the sidewalk. According to the testimony, and as shown by the photograph, a heavy growth of vegetation encroached upon and covered about four inches of the sidewalk along the north side thereof, thus narrowing to about twelve inches the unincumbered and unbroken space north of the apex of the hole.

Appellant described the condition of the sidewalk between the alley and the place of her fall thus: 'As you left the edge of the alley a good many cracks criss-cross back and forth and about six feet from the east edge there was a hole, not a very large hole, but it extended almost halfway across the sidewalk. * * * Out along six or seven feet from the first hole there was another hole that was roughly rectangular--the base was at the south edge of the walk. There was not any walk there but the base was on that. This place extended about two-thirds of the way across the sidewalk east. (northeast).' Describing the westerly edge of this hole, she testified: 'Well, jagged and rough, and of course it was not wholly straight; it curved in some places, but there was no sidewalk there, the surface of the sidewalk.' Asked how deep it was on the westerly side of the hole from the surface of the sidewalk down to the bottom of the hole, she said: 'Well, I think it varied from an inch and a half to two and a half inches.' Two school teachers corroborated the testimony of plaintiff respecting the condition of the sidewalk, and the character, size, and depth of the holes. Each had been familiar with these matters for several years. One, speaking of the large hole, where appellant fell, testified: 'It extended anyway two-thirds of the way across the walk. This broken place extended along the south margin of the walk about three feet. I think the depth of this hole would vary, right at the point of the hole it was about an inch, and then about two inches. This depth begins an inch and a half to two inches from the point of this hole, the apex of the hole, and there was a ditch and this ditch extended along the bottom of this ledge or break, and that showed that it had loose gravel,--loose pieces in it that were curved. * * * I would say that hole had been in the sidewalk two or three years.' She testified on cross-examination that sometimes when she walked through this hole, 'I took care because I knew it was bad.'

Appellant testified that she was familiar with the condition of the walk at the time she fell. She knew the location and character of the holes and other defects in it. In using the sidewalk she had always tried to avoid them. She had never fallen on this sidewalk before the time of her injury.

August 16, 1942, was Sunday. It was a pleasant afternoon. The sun was shining brightly. She was going north on Sixth Avenue to dine with friends. She left her rooming place and walked east on the sidewalk in question. She was not mentally disturbed about anything, and nothing diverted her attention from the matter of proceeding along this sidewalk. She testified:

'It was shortly before 4:30 o'clock in the afternoon. I took the north side of the sidewalk just as I always have--the smoother side. * * * this large hole was almost the width of the walk, but tapered off, that is perhaps the distance of the width of the sidewalk up near the apex of that big hole; when I left the east edge of the alley and took the north side of the sidewalk to walk on. * * *

'Q. Did you believe, Miss Beach, that by taking this path of travel you have mentioned you could walk safely along the walk? A. Yes, sir.

'Q. On this August 16, 1942, as you walked along this walk, where were you looking? A. I was looking down at the sidewalk.

'Q. In looking down at the sidewalk for what reason? A. For the sake of safety so I could see where I was going.

'Q. Tell the jury what happened. A. Well, as I was going along this 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. * * * It was the heel of my right foot which went off the edge right at the apex of the hole right at the narrowest part of the sidewalk. I felt my heel go into the break in the sidewalk. It was a decided feeling.'

In a long cross-examination the foregoing testimony was repeated without material variance. She testified that her heel slipped off the rough, broken edge of the hole and went down an inch and a half near the apex of the hole and on the west side of it. She made a cross with ink on the photograph, herein reproduced, to indicate the place. She was walking carefully in her customary manner along a narrow part of the sidewalk abutting the northwesterly edge of the hole. Surrounding the entire hole except on the south side of it was a jagged, irregular edge elevated above the uneven bottom of the hole approximately an inch to two and a half inches. A heavy growth of grass and weeds grew under the protecting ledge along a considerable part of the westerly side, and a small portion of the east side of the hole. The testimony and the photograph indicates that the bottom of the hole consisted of disintegrated concrete with scattered gravel or pieces of hard cement. There was a 'sort of trough, something been washed out', as the plaintiff expressed it.

Appellee's motion for a directed verdict contained eleven grounds, but only two were argued to the trial court. These were, first, failure to establish any negligence on the part of the city which was a proximate cause of appellant's injury, and, second, failure to show her freedom from contributory negligence. The court denied the first ground and held that the issue of the city's negligence was for the jury. It sustained the second ground, and also grounds five and six of the motion, and made no reference or finding respecting the other grounds of the motion. There was no merit in any ground ruled on.

The city has not appealed. It excepted to the court's ruling on the issue of its negligence, and seeks to sustain its contention by argument in this court. It took no exception to any other ruling. And while, under the heading, 'Questions Presented On Appeals', in its printed argument, it lists grounds 7, 8, 9, 10 and 11 of its motion to direct, as...