Crandall v. City of Dubuque

• Decision Date: 02 July 1907
• Citation: 112 N.W. 555,136 Iowa 663
• Parties: CRANDALL v. CITY OF DUBUQUE.
• Court: Iowa Supreme Court

136 Iowa 663

112 N.W. 555

CRANDALL

v.CITY OF DUBUQUE.

Supreme Court of Iowa.

July 2, 1907.

Appeal from District Court, Dubuque County; Fred O'Donnell, Judge.

Action at law to recover damages for personal injury. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.J. W. Kintzinger and E. E. Bowen, for appellant.

T. J. Fitzpatrick, for appellee.

WEAVER, C. J.

The plaintiff while walking upon the sidewalk of the defendant city slipped and fell, breaking her leg and otherwise bruising and injuring her person. This injury she charges to the negligence of the city in failing to remove the snow and ice which had accumulated upon the walk, and was trodden into a rough, slippery, and uneven surface, rendering travel thereon dangerous to persons using such way and in the exercise of reasonable care for their own safety. The defendant denies negligence on its part and avers that plaintiff was guilty of contributory negligence.

1. The principal proposition argued and relied upon by the appellant is that there was no showing of negligence on part of the city. In support of this point, it is said that no defective or dangerous condition of the walk existed at the point in question. The testimony tends to show that quite a heavy fall of snow occurred on Sunday, December 11, 1904. The storm began in the morning and continued until evening of that day. The street where appellee was injured was in or near the business part of town, and was evidently one on which there was much travel. No attempt was made by the city to remove the snow or clear the sidewalk during Monday, or until after 11 o'clock on the forenoon of Tuesday, at which time the injury complained of took place. The natural tendency of travelers along a sidewalk laden with considerable depth of snow to pursue a comparatively narrow path appears to have been followed by the usual result. Witnesses say the trodden path was “rounding and sloping to the sides,” that it was “uneven and rolling”; “was icy”; “rough”; had “many depressions,” and “a rough ridge in the center”; “soft in some places and hard in another”; and in “some places it was four inches higher than others.” Plaintiff testifies that in making her way along this path her foot slipped into a depression or hole, thereby causing her to fall. That a condition such as is here described constitutes a danger or defect within the meaning of the law of this state would seem too clear for argument. See Templin v. Boone, 127 Iowa, 91, 102 N. W. 789, and cases there cited. Nor can the court say as a matter of law that the city was not negligent in permitting this condition. The fact that a heavy body of snow had fallen, and that it was liable to impede travel, were things of which the city officers were bound to take notice. They must also be presumed to know that, if not removed, such a quantity of snow on a much used street in the business part of the city is quite sure to present in a short time conditions substantially such as are described by the witnesses in this case, and they are charged with the exercise of reasonable diligence to discover and remove such defects. As we have seen, this snow and ice had been allowed to accumulate and to remain on the walk from Sunday evening until near noon of Tuesday. There is no showing of any effort on part of the city to inspect and ascertain the condition of its streets after the storm, nor is there any claim that all of the available forces of the city department were engaged elsewhere in removing other defects of a more serious nature. The snow and ice had been upon the walk for such a length of time that we think it was a fair question for the jury whether reasonable diligence in the performance of the duty imposed upon the city in the care of its streets would not have brought this defect to the knowledge of the proper officers in such time that, with reasonable effort, it might have been removed and thus avoided the injury of which the appellee complains. We are not to be understood as holding that the failure of a city to remove defects of this nature from all its streets within a day or two after the appearance of such defect is necessarily negligence, but a delay which may justify the jury in finding negligence in the care of a street like the one in question in the business part of town where travel is very considerable may not necessarily be negligence in the care of residence streets, or streets but little used.

2. We are next asked to say that under the record as made the plaintiff was guilty of contributory negligence, and therefore cannot recover. The question of contributory negligence is peculiarly one of fact for the jury, and it is not within the province of the court to say as a matter of law that the plaintiff is precluded from...