Clarke v. Hubbell

• Decision Date: 17 December 1957
• Docket Number: No. 49129,49129
• Parties: Anna CLARKE, Appellant, v. Grover C. HUBBELL, Frederick W. Hubbell, and James W. Hubbell, Trustees of the Frederick M. Hubbell Estate, and City of Des Moines, Iowa, Appellees.
• Court: Iowa Supreme Court

Page 905

86 N.W.2d 905

249 Iowa 306

Anna CLARKE, Appellant, v. Grover C. HUBBELL, Frederick W. Hubbell, and James W. Hubbell, Trustees of the Frederick M. Hubbell Estate, and City of Des Moines, Iowa, Appellees.

No. 49129.

Supreme Court of Iowa.

Dec. 17, 1957.

Steward & Crouch and C. J. Cardamon, Des Moines, for appellant.

Hoffmann & Hoffmann and John Paul Jones, Des Moines, for Grover C. Hubbell, Frederick W. Hubbell and James W. Hubbell, Trustees of the Frederick M. Hubbell Estate, appellees.

Milton W. Strickler and D. J. Fairgrave, Des Moines, for appellee City of Des Moines.

GARFIELD, Justice.

The defendants who are trustees of the Frederick M. Hubbell estate (herein called the Hubbells) own a brick business building at the southeast corner of the intersection of Twelfth street (running north and south) and Grand avenue (which goes east and west) in the city of Des Moines. There is a cement sidewalk 12 feet wide along the north side of the building on the south side of Grand avenue. The entrance to the building faces northwest in a recessed area, triangular in shape, at the northwest corner A brick pillar is at the northwest corner of this small area.

There is a low place in the sidewalk, about 7/8 inch deep at its deepest point, just north of the entrance way and also east of it where water stands following rains. Roughly half this low place is east of the entrance way and the other half is north of it. This sunken place extends out from the building about four feet and is nearly eight feet long, east and west. About 6:30 a. m. on March 29, 1954, plaintiff, age 64, while walking to her work at Eleventh and Grand, fell on ice covered with about an inch of fresh snow two to three feet north of the east edge of the entrance way. There is substantial evidence the ice was rough, ridged and uneven. Plaintiff sustained a very serious permanent injury to her brain.

Plaintiff brought this law action against the Hubbells and the city to recover for her injury. At the close of her evidence the trial court directed a verdict for the Hubbells on the ground plaintiff failed to prove negligence on their part which was a proximate cause of the injury. The city offered no testimony and the jury returned a verdict in its favor. Plaintiff has appealed from judgment on the verdicts, assigning as error the direction of verdict for the Hubbells and, for the most part as to the city, several instructions to the jury.

I. In considering the claimed error in directing a verdict in favor of the Hubbells of course it is our duty to view the evidence in the light most favorable to plaintiff. Strom v. Des Moines & C. I. Ry. Co., 248 Iowa ----, 82 N.W.2d 781, 783, and citations.

Plaintiff's case against the Hubbells is based on the claim that before July, 1953, water escaped from the sunken area on the sidewalk by running into a crevice between the south edge of the sidewalk and the north wall of the building; during that month, to prevent water from seeping into the basement of their building through this crevice, the Hubbells cleaned out the crevice and caulked it with a mixture of asphalt, cement and sand and also built an apron or ramp of the same material just north of the entrance way which extended onto the south edge of the sidewalk eight to nine inches, with a heighth of 1 1/2 inches at the entrance way; these repairs prevented water from escaping from the low place in the sidewalk and thus made it more dangerous.

It clearly appears the Hubbells made the repairs just referred to in an attempt to prevent water from seeping through their north basement wall. It is also shown the repairs accomplished the purpose for which they were made except when rains were unusually heavy. It is not so clear, however, that before these repairs were made the water escaped from the sunken area on the sidewalk through the crevice along the north wall of the building or that the repairs caused the area to be substantially more dangerous than before.

The rule of law plaintiff contends renders the Hubbells liable is that expressed in Case v. City of Sioux City, 246 Iowa 654, 660, 69 N.W.2d 27, 30. We there point out that although an abutting property owner is not liable for injury caused by a defective sidewalk he failed to repair, he is liable for injury caused by some affirmative act of his which renders the sidewalk unsafe.

Liability of the abutter for his affirmative acts usually finds application in cases where he builds an excavation or barrier in or near the sidewalk or constructs a downspout from a building that discharges water on the walk. But as our Case opinion, supra, points out, we see no difference in principle between such instances and a case where the abutting owner's affirmative act is repairing the sidewalk.

Mutzel v. Northwestern Bell Tel. Co., 247 Iowa 14, 18, 72 N.W.2d 487, 489, denies liability, under the particular facts, of an abutter for injury from a fall on an icy sidewalk but recognizes he may be liable where he maintains his property in such manner that ice forms on the walk as the result of artificial rather than natural causes.

We are unable to find substanial evidence that the repairs made by the Hubbells in 1953 caused the walk, at the place where plaintiff fell, to be more hazardous than before. It is probably true that before these repairs were made some water escaped from the low place in the walk through the crevice at its south edge and that afterward a little more water stood in the low place than before. But we think it is not shown that the condition of the walk where plaintiff fell was caused, to a substantial extent, by the repairs made by the Hubbells in 1953. A finding in plaintiff's favor on this issue must be based in part on conjecture. We therefore must affirm the judgment on directed verdict in favor of the Hubbells.

We will refer to the evidence which leads us to this conclusion. Mrs. Simms worked for plaintiff's employer for five years preceding the trial, two years after plaintiff fell, and was with her when she was injured. She testified that during the three years before plaintiff fell she observed water standing at that place following rains and photographs showing standing water in the sunken area, taken after plaintiff's fall, represent the condition of the walk following rains during the years she passed the area. On cross-examination Mrs. Simms said the condition exhibited by the pictures was the same every time it rained and she had observed that for three years before the accident.

Mrs. Fuller worked with plaintiff over 20 years and passed the low place in the walk each workday for a great many years. She too was with plaintiff when she fell. She also testified the photographs above referred to show conditions there after a rain for a period of years before plaintiff's injury in March 1954. On cross-examination this witness said that at the various times it rained during the 20 years she has been over this sidewalk the water was always collected at the same point.

Mr. Mills worked for Iowa Bearing Co., tenant of the Hubbells' building, five years ending about the time plaintiff was injured. He testified the photographs above mentioned show conditions after rains during the five-year period, he would sweep the water out of the low place following rains and when it formed ice he put ashes or salt on it, the caulking prevented some water from escaping from the walk into the basement. On cross-examination Mills said after the caulking was done water still collected in the low place the same as before 'on the average--somewhere along the same setup.'

Mrs. Roberts worked for the same employer as plaintiff for five years and at an earlier time some ten years before the trial. She fell at about the same place plaintiff did that same morning. She testified that during her employment, before the time plaintiff fell, she observed water standing in the depression in the walk when it rained and also ice in that general location and the photographs represented the appearance of the walk when she saw water standing on it. On cross-examination the witness said 'it was always approximately the same puddle. I do not know there was any difference between the first and last times I observed it. The amount of water would depend upon the amount of rain.'

Mr. Figg worked for the tenant, Iowa Bearing Co., nearly ten years before plaintiff's fall. He was the company's manager at time of trial. He testified that after the caulking was done water did not get into the basement from ordinary rains but before then water stood on the walk about the same. On cross-examination he said he could not say there was more water collected on the walk after the caulking was done--it was about the same.

As previously indicated all these witnesses were called by plaintiff. The women at least seemed to be very friendly to her. Mr. Mills appeared to be disinterested. We have considered the plat exhibit N, showing various levels in the area in question. While the exhibit does not support all the Hubbells claim for it, it is not in conflict with the oral testimony above referred to.

II. We consider now plaintiff's objections to instructions to the jury in her case against the city. We think it was error not to submit to the jury plaintiff's charge that the city was negligent 'in failing to remove rough, ridged and uneven ice from the sidewalk.' As stated, there is substantial evidence to support this specification.

The court submitted to the jury two charges of negligence. The second of these need not be considered. The first is that the city was negligent in permitting the sidewalk to be in a defective condition for an unreasonable time, which, in conjunction with rain that froze and became rough and uneven ice and was covered by snow, created a dangerous condition. This specification combines plaintiff's charge b, which is identical with the court's specification down to the first comma, and a...