Beyer v. City of Dubuque

• Decision Date: 11 January 1966
• Docket Number: No. 51901,51901
• Citation: 258 Iowa 476,139 N.W.2d 428
• Parties: , 18 A.L.R.3d 416 Bess BEYER, Appellee, v. CITY OF DUBUQUE et al., Appellants.
• Court: Iowa Supreme Court

Page 428

139 N.W.2d 428

258 Iowa 476, 18 A.L.R.3d 416

Bess BEYER, Appellee, v. CITY OF DUBUQUE et al., Appellants.

No. 51901.

Supreme Court of Iowa.

Jan. 11, 1966.

Romolo N. Russo, Dubuque, for appellant City of Dubuque.

Raymond R. Stefani and G. K. Thompson, Cedar Rapids, for appellant Marion J. Ryder.

Francis H. Becker and Michael A. Stapleton, Dubuque, for appellee.

RAWLINGS, Justice.

On December 26, 1961, at 2:00 p. m., plaintiff was injured as the result of a fall on an ice covered public sidewalk just north of Fifth and on the east side of Locust Street in Dubuque.

A building owned by defendant Marion J. Ryder, and located at the northeast corner of these streets abutted the sidewalk. From the street intersection to about the center of the Ryder building the sidewalk was clear, but from that point on to the next property line, it was covered with slippery packed ice and snow.

At time of plaintiff's fall there was no abrasive material or salt on this ice nor had it been chopped up.

There is no dispute as to time and place of the fall, condition of the sidewalk in the area of the fall, or ownership of the abutting property.

Plaintiff sued the City of Dubuque and Marion J. Ryder. Upon trial the jury returned a verdict for plaintiff in the sum of $25,000, judgment was entered accordingly against both defendants.

Motions by defendants for judgment notwithstanding the verdict, or for new trial were overruled and they appealed.

I. The abutting property owner contends she is not liable.

For brevity and convenience the apartment house owned by defendant Ryder will be sometimes referred to as the building.

The eaves and gutter on the west side of the building overhang the street. The gutters connect at the northwest corner with a downspout which is designed to carry water from the roof away from the sidewalk.

However, there is testimony to the effect the gutters and downspout on the building were inadequate or defective, as a result of which water dripped and leaked from them onto the sidewalk.

Captain O'Brien of the Dubuque police department, called as a witness by defendant City, said it appeared to him water running into the downspout leaked and then drained down the side of the building toward the sidewalk area. According to this witness ice covering the connection of the downspout with the gutter was so thick he could not tell whether the ice supported the pipe or whether the pipe actually connected with the gutter.

William Gerlach, a tenant in the building, called as a witness by defendant Ryder, stated that on Thursday or Friday after December 12, it thawed and he got the sidewalk fairly clean except in the area where water was running in from the melting snow on the roof of the building and from snow on the street curb. He said it snowed December 22, and some boys tried to clean the sidewalk but part of the area could not be cleared because ice was mixed in with the snow. He then unsuccessfully attempted to chip off the ice. This witness also stated there were icicles on the fence adjoining the building and adjacent to the sidewalk near where plaintiff fell which had formed from the roof down and that water which came down and did not freeze went into the area where plaintiff fell.

Another witness, Mr. Genzler, called by plaintiff, said he walked over this sidewalk every day and the place where plaintiff fell had been slippery and dangerous for about two weeks; attempts had been made to clean the sidewalk, but the ice could not be removed; there was no snow on top of the ice; and the snow had packed and frozen over, and was smooth and rough in spots. He stated ice came from the building, that it appeared to him there was an overflow right at the corner of the building, and he saw water coming down from that direction which would then freeze over.

Plaintiff's testimony discloses the ice on the sidewalk was old, thick, rough, and bumpy.

Because it probably speaks more eloquently of the situation as it existed at the place where plaintiff fell than could the oral testimony of any witnesses, plaintiff's exhibit 3 is here reproduced.

PLAINTIFF'S EXHIBIT 3

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

We are satisfied the evidence was sufficient to present a jury issue as to liability of defendant Ryder. In Updegraff v. City of Ottumwa, 210 Iowa 382, 226 N.W. 928, plaintiff had fallen on an icy sidewalk, sued the city and adjacent property owner and recovered from the latter. We affirmed. There a downspout carried water to a tile, thence into a sewer. As snow on the roof of the building melted, the water escaped from a hole in the downspout onto the sidewalk and there froze.

In the cited case, 210 Iowa at 384, 226 N.W. at 929, we said:

'The duty of maintaining the streets and sidewalks in a reasonably safe condition is imposed by statute upon cities and towns. Section 5945, Code 1927 (Section 389.12, Code, 1962). The duty thus imposed by statute upon municipalities does not, however, relieve property owners or others from the duty not to obstruct or place dangerous instrumentalities thereon so as to endanger the safety of the public rightfully using the same for from liability for damage occasioned thereby. (Authorities cited.) This rule has been applied in many cases and under a great variety of facts. It is elementary that the owner of a building abutting upon a public street may not lawfully collect water accumulating from rain or snow upon the roofs of buildings, and by some artificial means discharge the same upon the sidewalk or street, where it freezes and forms ice. (Authorities cited.) Nor may such owner negligently permit the water to escape from a defective down spout or other agency and accumulate upon the sidewalk so as to freeze and cause injury to others. (Authorities cited).' (Emphasis supplied)

See also Wright v. Atlantic & Pacific Tea Co., 216 Iowa 565, 246 N.W. 846; Ahern v. City of Des Moines, 234 Iowa 113, 12 N.W.2d 296; City of Des Moines v. Barnes, 238 Iowa 1192, 30 N.W.2d 170; 39 A.L.R.2d 802; Franzen v. Dimock, Gould & Co., 251 Iowa 742, 101 N.W.2d 4; and 40 C.J.S. Highways § 258, page 305.

We are not here dealing with a case involving some structure on private property which caused snow to accumulate naturally on a public sidewalk. Rather, we are confronted with the matter of water being discharged from private property which, with water from natural sources, accumulated and then froze on a public sidewalk.

This defendant seems to lean rather heavily on Rudd v. Lyceum Dramatic Productions, 250 Minn. 328, 85 N.W.2d 61. However, that case does not stand on the same factual basis as does the one now before us. In the Rudd case it appeared water dripped on the sidewalk from a cornice and some water came down around a spout and collected in holes in the sidewalk. The court held the evidence did not disclose whether any material amounts of water were artificially cast upon the sidewalk or in sufficient amounts to cause or aggravate the hazard, but remanded for new trial.

There was sufficient probative evidence in the case now before us from which the jury could reasonably conclude the ice on the sidewalk caused plaintiff to fall, that the water causing this ice came from melting ice and snow on the Ryder property, and from melting snow on the street or street curbing. Rules of Civil Procedure 344(f)(10)(17).

In other words the jury could reasonably have found the ice formed on the sidewalk as the result of a combination of artificial and natural causes. Furthermore, and of even greater importance, is the fact that there was sufficient evidence from which the jury could find the hazardous condition existed only at and in the area where water was caused to flow from the Ryder property.

II. Defendant Ryder also challenges the manner of selection of the trial jury.

As previously stated, plaintiff sued the City of Dubuque and Marion J. Ryder. Rules of Civil Procedure 24. No effort was made by defendant Ryder to secure a separate trial. Rules of Civil Procedure 186.

In the course of impaneling the jury, one prospective juror disclosed he was a taxpayer in the City of Dubuque. Plaintiff exercised challenge for cause. Over objection by defendant Ryder the juror was excused. Counsel for plaintiff then made known all prospective jurors who were taxpayers in Dubuque would likewise be challenged. The court then stated each such prospective juror would be excused and accorded to counsel for defendant Ryder a standing objection and exception to each such ruling. Defendant Ryder asserts the challenge made is not one for cause prescribed by law (Rules of Civil Procedure 187), and the excusing of any such prospective jurors was prejudicial to her. We cannot agree.

The laws of Iowa provide an orderly and reasonable method for selection and call of a jury panel, and for the impaneling of a trial jury. Chapters, 607-609, Code, 1962, and Rules of Civil Procedure 187.

In Schwickerath v. Maas, 230 Iowa 329, 336-337, 297 N.W. 248, 251, we explained in concise terms the basic right to jury trial and the purpose of challenges, and there said:

'The Constitution of Iowa, Article 1, Section 9, provides that the right of trial by jury shall remain inviolate. Necessarily, this implies a jury, fair, impartial, disinterested and unbiased. To obtain such jury, the machinery must be adequate for the purpose, and any restrictions in the processes, which unreasonably prevent litigants or their counsel from obtaining such a jury, infringe upon this constitutional right. Under the statutes and practice in Iowa, two forms of challenges have been developed, i. e., challenges for cause and peremptory challenges * * *. In the former, specific statutory grounds have been enumerated. * * * In the latter, however, our statutes, because of the impossibility of any enumeration which could encompass and envisage all of the varieties of relationships which might and do bear...