Bender v. Inc. Town of Minden

• Decision Date: 13 July 1904
• Citation: 124 Iowa 685,100 N.W. 352
• Parties: BENDER v. INCORPORATED TOWN OF MINDEN.
• Court: Iowa Supreme Court

124 Iowa 685

100 N.W. 352

BENDER

v.INCORPORATED TOWN OF MINDEN.

Supreme Court of Iowa.

July 13, 1904.

Appeal from District Court, Pottawattamie County; A. B. Thornell, Judge.

Action at law to recover damages for personal injuries received by plaintiff in falling through a hole in one of the sidewalks in defendant town. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals. Reversed.H. L. Robertson and Harl & Tinley, for appellant.

Saunders & Stewart, for appellee.

DEEMER, C. J.

The defendant is a town of four or five hundred inhabitants in Pottawattamie county. The two principal streets therein are Broadway, running north and south, and Second, running east and west. At the time of the accident in question there was a board walk, some 10 or 12 feet in width, running east and west on the north side of Second street, along the south side of block 8 in said town. What was known as “Hesley's Saloon” was one door from the west side of the block, and between this saloon and Broadway street, to the west, was a general store, at which plaintiff traded. The post office was half a block from the saloon, and still east of that, and on the south side of the street, was plaintiff's hotel. On the afternoon of March 27, 1902, and at about the hour of 2, plaintiff left his hotel to go to the general store, where he traded. Just after passing the post office he met a traveling man with whom he was acquainted, and passed down the board walk with him until they arrived at a point just in front of the saloon, where they stopped and talked for 15 or 20 minutes. When the conversation was concluded, plaintiff saluted his companion, turned around, and started to resume his journey westward, when he immediately fell into a hole in the sidewalk which was 3 1/2 to 4 feet in width, and 7 or 8 feet long, and down into an excavation under the walk which was some 6 or 8 feet deep, receiving the injuries of which he complains. He charges negligence on the part of the town in not discovering this hole and barricading it so that the traveling public might be protected from falling therein. It was conceded on the trial that the town had no actual knowledge or notice of the condition of the walk prior to the time the plaintiff received his injuries, but it is contended that it had constructive notice, or that it was negligent in not discovering the defect and remedying it before the accident occurred. It appears that some workmen were engaged in making repairs of the cellar under the saloon, and that, in order to get material into the cellar, and to afford light, that they might be able to see to work, they removed three planks from the walk, and thus made the hole into which plaintiff fell. They had been engaged in this work two or three days, and it was their custom, when they took up the planks, to place some of them length wise over the opening, so as to afford a means of passage thereover, and to barricade the other places with beer kegs and cases. The jury was justified in finding that this hole was not barricaded at 9 or 10 o'clock in the forenoon of the day plaintiff was injured, and it seems to be conceded that it was not barricaded at the time plaintiff fell into it, a little after 2 o'clock in the afternoon. But the evidence shows without dispute that the planks were replaced at noon on that day, and were not removed again until 10 minutes of 1 o'clock in the afternoon. It also shows that these planks were replaced by the workmen whenever they quit work, and that the hole was generally barricaded, although it was probably without barriers for from two to three hours in the forenoon of March 27th, and for about an hour and a half in the afternoon. We must assume that the officers of the town had knowledge of the custom of the men to barricade this hole, and that they would continue to do so; and they are not to be held negligent, nor the town charged with knowledge of the situation, unless they should, in the exercise of ordinary care, have known of the failure of these workmen to barricade the opening in the walk at the time the accident occurred. The most that can be claimed from the evidence is that the workmen engaged in repairing the cellar, contrary to their usual custom, left the hole unguarded for an hour and half prior to the time plaintiff received his injuries. Was this enough to take the case to the jury on the question of the negligence of the defendant? The presence of such an opening in a populous city for such a length of time without barricades might very well be considered negligence, but not so, we think, in a town the size of this one, where foot travel is small, and officials are not required to be as watchful as in more populous centers. In small places like this, no one is or can be employed to keep constant supervision over the sidewalks. True, the officials are required to exercise ordinary care and diligence, but whether they did, or not, depends on the circumstances and surroundings. While the same...