Broburg v. City of Des Moines

• Decision Date: 25 April 1884
• Parties: BROBURG v. THE CITY OF DES MOINES
• Court: Iowa Supreme Court

19 N.W. 340

63 Iowa 523

BROBURG v. THE CITY OF DES MOINES

Supreme Court of Iowa, Dubuque

April 25, 1884

Appeal from Polk Circuit Court.

THE petition states that the plaintiff, without fault on his part, "stepped and fell," while passing along a street of the city, "in consequence of the defendant's officers, agents and employes having negligently and carelessly permitted stones, brick and other building material to be placed upon and remain on said street, so as to cause large quantities of ice and snow to accumulate and remain for a great length of time on the part of said street where plaintiff was rightfully walking, so as to obstruct and render dangerous the ordinary and proper way for persons walking on said street; that the officers, agents and employes of the defendant had notice and knowledge of the dangerous condition of said street, or by the exercise of ordinary diligence might have known thereof." There was a denial of the allegations of the petition, trial by jury verdict and judgment for the plaintiff, and defendant appeals.

REVERSED.

Williamson & Kavanaugh, for appellant.

Finch & Donovan, for appellee.

OPINION

SEEVERS, J.

I.

The building material, placed as it was, did not cause the accident, but it was caused by the ice and snow which had accumulated in the street. The building material, at most caused the ice and snow to accumulate. The city did not have express notice of such accumulation, nor that the street was in a dangerous condition. A material question on the trial therefore, was, whether the snow and ice had so accumulated as to render the street dangerous to persons passing over it. In a lengthy instruction, the court defined the duty of the city in such cases, and, among other things, said that "such care requires that accumulations of ice and snow, dangerous to travel, should be removed within a reasonable time after the officials of the city charged with the care of the streets had knowledge thereof, or by the exercise of ordinary diligence should have known it, and the city is not negligent until such reasonable time has elapsed."

We have examined the evidence, and do not find any sufficient evidence tending to show that the street had been in a dangerous condition for such a length of time as that the city, by the exercise of ordinary diligence, should have had knowledge of such condition. The only witness who speaks of the condition of the street prior to the accident is Mr. Callahan. He states: "I passed over the place at least six times a day. * * I could not say how long it had been...