Cosner v. City of Centerville

• Decision Date: 29 January 1894
• Citation: 90 Iowa 33,57 N.W. 636
• Parties: COSNER v. CITY OF CENTERVILLE.
• Court: Iowa Supreme Court

90 Iowa 33

57 N.W. 636

COSNER

v.CITY OF CENTERVILLE.

Supreme Court of Iowa.

Jan. 29, 1894.

Appeal from district court, Appanoose county; H. C. Traverse, Judge.

Action to recover for personal injuries alleged to have been caused by the negligence of defendant in permitting snow and ice to accumulate on one of its sidewalks. There was a trial by jury, and a verdict and judgment for plaintiff. The defendant appeals.T. M. Fee, for appellant.

L. C. Mechem and Geo. D. Porter, for appellee.

ROBINSON, J.

The plaintiff fell on a sidewalk of the defendant on the 12th day of January, 1891, and received the injuries of which he complains. There is much conflict in the evidence in regard to the place where he fell, and in regard to the condition of the walk. The plaintiff contends that the place of the accident was six or eight feet south of a street which extended from east to west, on a walk which extended from south to north, on the west side of an intersecting street, and that the walk at that place was entirely covered with ice, which was five inches thick in one place, and thinner at the edges; that it had been there in substantially the same condition for several days; that it was originally a snowdrift, which was formed at the corner about the 1st of January, and extended lengthwise of the walk, and had never been removed. The plaintiff is corroborated as to these matters by several witnesses. Numerous witnesses on the part of the defendant testify that the place of the accident was 30 or more feet further south than the place designated by the plaintiff, and that there was no ice on the walk at the time of the accident, neither at the place fixed by the plaintiff, nor at that fixed by witnesses for the defendant, excepting sleet which had fallen the night before. There was a fair conflict in the evidence in regard to those matters, and it was within the province of the jury to determine the facts. We think they were authorized to find that they were as claimed by the plaintiff. But it is said that the evidence shows clearly that the negligence of the plaintiff contributed to the accident. The place of the accident was at the corner of the lot on which plaintiff resided, and within 200 feet of his house. His customary route to and from his place of business was over that spot, and he had passed over it twice each day, excepting Sunday, for several days. He states that its condition was about the same Monday morning, when he fell, that it was Friday and Saturday of the preceding week, excepting that the ice had thawed some on Saturday. The plaintiff had been a cripple for some years, and was unable to walk without crutches. He could not balance himself on his feet, and, when he moved, he rested his weight on his crutches, and drew his legs after him. He knew the ice was there when he left his house, and saw it when he reached it, and before he put his crutches upon it. After he put his crutches upon it, his feet slipped, and the accident occurred. If the walk was in a dangerous condition, he was as fully informed of the fact as the defendant could have been, and must have known that it was dangerous for him to attempt to pass over it. But whether he was negligent in what h...