OPINION
FAVILLE, J.
I.
The
appellant is a town of about 300 inhabitants. Appellee is a
man approximately 70 years of age. He was employed by a
lumber company at the work of unloading tile. On the 18th day
of December, 1926, he was returning from his place of
employment to his home, when he passed over the sidewalk in
question, and slipped and fell, breaking the femur bone of
one leg. Appellant moved for a directed verdict, which motion
was overruled; and it is urged on appeal that the court erred
in not sustaining said motion on the ground
that the appellee was guilty of contributory negligence. This
is the important question in the case. The testimony is set
out by question and answer in extenso in the
abstract. We select excerpts from the appellee's
testimony sufficient for the purpose of passing upon the
question presented. The appellee, as a witness in his own
behalf, testified with regard to the condition of the walk
where the accident took place, which was in front of a
property known as the Cathcart building. He was asked to
describe the condition of said walk at the time of the
injury, and testified as follows:
"A.
Had snow on it that had melted, and it had frozen, and it was
icy; it was icy,--had not been cleaned off. * * * Q. State,
Mr. Burke, how long that condition had been there, as far as
you know? A. Well, as far as I know, I think it was about two
weeks. * * * A. We had one good fair-sized snowstorm, five or
six inches, I should judge. Q. When did that come? A. That
was
along somewhere around the 7th, 8th, or 10th of December,--I
couldn't say just the date,--I don't--Q. Were you
down and around the town of Lawton in front of the Cathcart
property after that snowfall? A. Yes, sir. Q. Was that snow
removed from in front of the Cathcart property? A. I think
not. Q. What happened to that snow? A. It froze. Q. Just
describe the condition it took, or what fell there? A. It
would thaw and freeze, and thaw and freeze, and people would
travel along there, and it was rough. * * * Q. State whether
or not that condition continued from the snowstorm you have
mentioned, down to the time of your injury? A. Yes,
sir."
The
witness testified that, after he left the lumber yard, he
came down an alley, until he arrived at the sidewalk near the
corner of the Cathcart building. He then testified:
"Q.
I say, when you got to the corner of the Cathcart building,
what did you do? A. Why, I turned south. Q. State what the
condition of that walk was, in front of the Cathcart
building, at that time, if you know? A. Well, I couldn't
say; I remember it was very icy. Q. Describe the ice, as to
whether it was rough, smooth, or all rough, or how deep it
was, or the condition of it. A. I couldn't say as to the
depth of it, but it was rough; it had been tramped there, and
it was tracked up, and it had frozen again. Q. State, if you
know, how long that ice had been there in
front of the Cathcart building? A. At least for a week or
two. Q. State whether or not you recall any snow in Lawton
prior to this date when you were injured,--do you recall any
snowstorms in Lawton? A. Yes, sir. Q. State to the jury when
it was, to the best of your recollection. A. As near as I can
say, it was around somewhere from the 7th to the 10th. Q. Of
what months? A. Of December. Q. What kind of a snowstorm was
it? A. Well, it started with sleet, and ended with
snow,--started with rain and sleet. Q. How is that? A. It
started with rain and sleet, and ended with snow. Q. You
think that was around the 7th to the 10th of December? A.
Somewhere around there. Q. How much snow came at that time?
A. Well, I couldn't say exactly, but I should judge
somewhere in the neighborhood of five or six inches. Q. State
whether or not that snow, if you know, was removed from in
front of the Cathcart building. A. Not that I know of. Q.
State whether or not you were down town, and how often, to
the best of your recollection, during the first part December
of 1926, in the town of Lawton. A. About every day. Q. On
these occasions, state whether or not you observed the
condition of the walk at the Cathcart building. A. Why, I
didn't pay any particular attention to it. Q. Well, did
you observe the condition? A. I noticed there was always snow
and ice and stuff there. Q. Did you observe the condition
after this snow fell, between the 8th or 10th of December? A.
I did. Q. What was that condition? A. That was just left as
it had fallen. Q. State whether or not that condition
existed, the condition down to the date of the injury. A. How
is that? Q. I say, state whether or not that condition of
snow and ice existed and continued down to the date of the
injury. A. I think it did. Q. When you reached the corner of
the Cathcart building, what would be your ordinary and most
convenient route to your home? A. Go south to the corner, and
then go east. * * * Q. You live up this street to the east
from that place? A. Yes, sir, I do. Q. You had been over that
walk there in front of Cathcart's before? A. Yes, sir. Q.
Why did you go home that way on that day? A. Because I would
have to cross the street right there in the middle of the
block, and the cars going both ways, here it would not be as
safe as it would be to go down the walk. * * * Q. Is that the
way you were headed for home? A. Yes, sir,
that is the way I was headed for home. Q. State whether or
not you thought, at the time you were crossing this ice, you
could cross it in safety. A. I thought I could cross it all
right. Q. How were you dressed, at the time you crossed in
front of the Cathcart building, with reference to what was on
your feet? A. I had shoes and overshoes. Q. Rubber bottom
overshoes? A. Yes, sir. Q. Smooth or rough bottoms? A. How is
that? Q. Were they smooth or rough bottoms? A. Why, it was
rough. Q. I mean the bottom of your overshoes. A. Well, they
were rough. Q. How did you proceed across the walk there in
front of the Cathcart building? A. I walked slow, and looked
out, trying to get across without falling. Q. What kind of
steps did you take, if you remember? A. Short and quick. Q.
Did you watch where you were going? A. Yes, sir. Q. Did you
continue straight across in front of the Cathcart building in
a straight line, or did you vary from a straight line? A. I
varied a little. * * * Q. Why did you get out, as you say,
like that? A. Because it was rougher,--it looked
rougher,--and some better for me to walk on; in the center
here, it had got packed down until it was slick and smooth.
Q. You walked out around a little, to get on the rough ice?
A. Yes, sir. Q. What happened after you stepped out of the
beaten path onto the rougher ice to the side of it? A. I
slipped and fell. Q. Where were you, with reference to the
front of the Cathcart building, when you fell? A. I was right
in front of it: that is, right in front of the south half of
it. * * * Q. So you were not paying much attention to this
walk in front of the Cathcart place when you came on it that
evening? A. Why, I knew,--I had crossed it a number of times,
and I never thought anything about getting my neck broke on
it. Q. You didn't think it was dangerous, did you? A. I
didn't think it was as dangerous as that. * * * Q. When
had you gone over that walk before? A. In the forenoon. Q.
What time? A. Oh, around 10 o'clock or 10:30,--somewhere
along there."
It
would incumber this opinion to too great an extent to attempt
to set out all of the testimony of the appellee. The
foregoing is sufficient. Upon this record, it is strenuously
contended by the appellant that the appellee was guilty of
contributory negligence. As a general rule, the question of
contributory negligence is one for the jury. Appellant relies
for a reversal chiefly upon two decisions of
this court: Lundy v. City of Ames, 202 Iowa 100, 209
N.W. 427, and Cratty v. City of Oskaloosa, 191 Iowa
282, 182 N.W. 208. In the Lundy case, it appeared
that the plaintiff approached a familiar condition in a
sidewalk, where there was an icy slope which he knew was
dangerous, and which he said he thought he could get over
safely. His evidence disclosed that, at the time, he was
walking at an ordinary gait; that he was not thinking about
the sidewalk at the time; and that he did no act or thing to
avoid...
