Beirness v. City of Mo. Valley

• Citation: 162 Iowa 720,144 N.W. 628
• Parties: BEIRNESS v. CITY OF MISSOURI VALLEY.
• Decision Date: 15 December 1913
• Court: United States State Supreme Court of Iowa

162 Iowa 720

144 N.W. 628

BEIRNESS

v.CITY OF MISSOURI VALLEY.

Supreme Court of Iowa.

Dec. 15, 1913.

Appeal from District Court, Harrison County; O. D. Wheeler, Judge.

Action to recover damages for injury resulting from a fall on an icy sidewalk. The trial court directed a verdict for the defendant, and plaintiff appeals. Affirmed.Burke & Tamisiro, of Missouri Valley, and S. H. Cochran, of Logan, for appellant.

John P. Organ, of Council Bluffs, and C. W. Kellogg, of Missouri Valley, for appellee.

WITHROW, J.

I. The appellant received certain injuries as the result of a fall while passing along a sidewalk in the city of Missouri Valley. She brought action to recover damages, alleging that the city was negligent: (1) In permitting the construction and maintenance of the sidewalk at a grade which was steeper than the established grade of the street to which it was adjacent, which it is alleged was dangerous to the public using the same. (2) In constructing the walk in this climate with a smooth surface, and in permitting snow and ice to remain on the walk in violation of the city ordinance, in violation of law, and in permitting snow and ice to remain on the walk in rough and uneven surfaces. There was a trial to a jury which resulted in a verdict being directed in favor of the defendant, from which this appeal is taken by the plaintiff.

II. Appellant's accident and injury occurred about 8:30 o'clock a. m. Wednesday, December 7, 1910. On the preceding Sunday and Monday there had been a fall of snow, estimated by witnesses as from three to five inches in depth. On the night before the accident there had been an additional snow fall of about one-half inch. Between Sunday and Tuesday evening there had been a slight thaw, the effect of which was to remove some, but not all, of the snow from the walk. In the center of the walk, which was of concrete, a path had been made by travelers over it. The effect of the travel along the path had been to create ridges or uneven conditions raised by the imprint and pressure of feet in the snow, followed by freezing, which made the raised places more or less solid. The walk was sloping, being built upon a hillside, the grade of descent at the point where the accident occurred being near 15 per cent. At the time of the accident the appellant was going down the hill upon the sidewalk.

[1] While it is urged that the accident resulted from the combined causes of the rough and uneven surface of the walk, occasioned by the snow and ice upon it, in connection with the steep grade which it is charged is not in accordance with the established grade of the street at that point, the evidence shows without dispute, and it therefore must be taken as true, that appellant had passed over the part of the walk where the ridges and rough surface are claimed to have been, and her fall resulted from stepping upon a place covered by the snow of the previous night, which under the pressure of her weight slipped on a thin coating of ice beneath, occasioning her fall. These facts remove from the case, as a charge of negligence, the permitting of the snow and ice to remain upon the walk in rough and uneven surface, as that particular condition is shown to have had no proximate connection with her fall.

[2] III. The testimony of the appellant and her husband was to the effect that the ice upon which she slipped covered a surface about the size of a hand, by her described as “just a little spot of ice.” Where she fell the sidewalk was bare in spots, having the appearance of being covered with sleet. At that place the snow was soft. We are therefore led directly to the question whether the spot of ice at the particular place where the accident happened is shown to have existed for such length of time as created liability for failure to remove it. The evidence shows without dispute that in nearby places the walk appeared to be sleety. There is no evidence of there having been a fall of sleet; but that condition is explained by the evidence which shows that between Sunday and Tuesday evening there had been a slight thaw, which followed by a freeze would occasion ice surface at places where the water rested or had not flowed away. We do not find in the evidence that which would permit us or warrant a jury in the conclusion that the particular icy condition at the place of the accident had existed for such time as charged the city with notice of it. Tobin v. City of Waterloo, 131 Iowa, 75, 107 N. W. 1031;Goodson v. City of Des Moines, 66 Iowa, 255, 23 N. W. 655.

[3] But independent of the question of notice, actual or presumed, it has been held that when cold follows a melting of snow, causing a film of ice upon the sidewalks which it is practically impossible to remove, the municipality may, without being guilty of negligence, wait for a change of temperature to remedy the condition. 28...