Copeland v. Junkin

• Decision Date: 24 June 1924
• Docket Number: No. 35891.,35891.
• Citation: 198 Iowa 530,199 N.W. 363
• Parties: COPELAND v. JUNKIN.
• Court: Iowa Supreme Court

198 Iowa 530

199 N.W. 363

COPELAND

v.JUNKIN.

No. 35891.^a1

Supreme Court of Iowa.

June 24, 1924.

Appeal from District Court, Jefferson County; F. M. Hunter, Judge.

Action to recover for personal injuries received by plaintiff in stepping into an open areaway maintained by defendant in the sidewalk along her building. A verdict for plaintiff for nominal damages was set aside, and a new trial granted. From this order the defendant appeals. Reversed.Ralph H. Munro, of Fairfield, and Jo R. Jaques, of Ottumwa, for appellant.

Thoma & Thoma, of Fairfield, for appellee.

VERMILION, J.

The action is against the owner of a business house in the city of Fairfield to recover for a personal injury received by plaintiff in stepping into an opening or areaway in the sidewalk at a cellar window of defendant's building. The negligence charged is that the “scuttle or cover or grating provided for said hole was negligently constructed and maintained by defendant in that it was loose and was laid over said opening without being fastened down and without any secure fastening of any kind provided, and could easily be removed by any one.” It appears without dispute that the sidewalk was of concrete; that the opening in question was 17 1/2 inches wide from the building wall outward and 29 inches long and about 30 inches deep. The cover was an iron grating weighing some 18 pounds, with projections or “dogs” at the end that rested on the surface of the walk and allowed the grating to lie in the opening with its upper surface practically level with the surface of the walk. It had no other fastenings of any kind, and was held in place only by its own weight and by being set in the opening. To remove or displace it it would have to be raised out of the opening sufficiently to allow it to pass onto or over the surface of the walk. At the time plaintiff stepped into the opening the cover was not in place, but was lying on the bottom of the opening or leaning against one side of it. The opening was used to put coal into the cellar; but how the cover came to be displaced on the occasion in question is not shown. There is no evidence that the opening had recently been used for any purpose. The building was occupied by tenants.

Upon the trial there was a verdict for plaintiff for $1. This verdict the court, on motion of plaintiff, set aside as inadequate and granted a new trial. From this order the defendant prosecutes this appeal.

Two errors are relied upon by appellant: (1) That the court erred in not sustaining defendant's motion for a directed verdict; (2) that the court erred in granting a new trial.

[1] It is the contention of counsel for appellant that there was no evidence of actionable negligence on the part of the appellant, and that her motion for a directed verdict in her favor, made at the close of appellee's evidence and renewed at the close of all the evidence, should have been sustained, and that, since the appellee was not entitled to recover in any event, it was error to set aside a verdict for nominal damages and grant a new trial.

It is to be observed that negligence is not predicated on the fact that the cover was not in place, but on the construction of the cover without means of fastening it in place. It was not intended to be immovable; the use of the areaway and window for the purpose of putting coal in the cellar required that it be removed. There is no showing whatever as to how it came to be removed on the occasion in question--whether it had been left off by some one who was making a proper use of the opening, or was intentionally removed by some one without right. The evidence establishes without conflict that it was not in place over the opening, but how long this condition had existed, or how or by whom or why it was removed, is not shown. It is, however, fairly established that when in place it would not be displaced by one merely walking over it, or by the ordinary use of the sidewalk; that it would require some intentional effort to remove or displace it. It was, so far as the evidence shows, securely held in place by its weight, and by hanging suspended within the opening in the sidewalk by the projections or dogs at the end. The only direction in which it could be moved out of its proper place was first upward until one end or side of the grating would pass over the surface of the sidewalk. The only effect of a fastening would be to make it impossible, or more difficult, of removal. So long as it was in place a fastening could have added little, if anything, to its security in the ordinary use of the walk. When it was entirely removed the lack of a fastening was not the thing that made the place dangerous; it...