Cratty v. City of Oskaloosa

• Decision Date: 06 April 1921
• Docket Number: No. 33569.,33569.
• Parties: CRATTY v. CITY OF OSKALOOSA.
• Court: Iowa Supreme Court

191 Iowa 282

182 N.W. 208

CRATTY

v.CITY OF OSKALOOSA.

No. 33569.

Supreme Court of Iowa.

April 6, 1921.

Appeal from District Court, Mahaska County; Charles A. Dewey, Judge.

Action against the defendant city for damages on account of injuries claimed to have resulted from a fall upon a defective sidewalk. The court instructed the jury to return a verdict for defendant, and plaintiff appeals from a judgment against him for costs. Affirmed.

Evans, C. J., and Weaver and Preston, JJ., dissenting.Reynolds & Orvis, of Oskaloosa, for appellant.

Thomas J. Bray, of Oskaloosa, for appellee.

STEVENS, J.

Between 6 and 7 o'clock on the evening of December 15, 1916, while the plaintiff was returning to his home from a grocery store, a short distance from his residence, to which he had gone to purchase some supplies for the household, he fell upon the sidewalk and into an adjacent excavation suffering severe injuries. The description of the walk at the place of the accident, as set out in the abstract, is not very clear or satisfactory. It appears, however, therefrom that the walk was located on the west side of D street which extends north and south; that it was constructed of concrete blocks approximately 24 inches square; that several of the blocks on the west side of the walk had settled to slant 3 or 4 inches on the outside to the west. The east half was in a sound condition and suitable for the use of pedestrians. The night on which the accident occurred was cold, dark, and misty, and possibly there was some sleet on the walk. Plaintiff at the time was accompanied by a man by the name of Rea, who was walking a short distance ahead of him and with whom he was conversing. Plaintiff had resided in the vicinity of the alleged defective walk about three weeks and had passed over it several times. He testified that he was walking about the center of the walk, that he caught one foot in the crack, and that the other foot slipped, precipitating him to the walk and into the excavation. We are unable to determine definitely from the testimony whether the east edge of the sunken blocks projected above the level of the walk or not.

No questions were propounded to plaintiff by his counsel in chief as to what care he was exercising at the time of the accident, but upon cross-examination counsel for defendant went fully into this question. Plaintiff admitted that he knew the condition of the walk--

“Q. And you had walked over that walk many, many times? A. No, sir; I had not. Q. How many times? A. I didn't book them each time I went over, but not very many times. Q. How many times a day did you go to town during those three weeks? A. Not very often. I never loafed around town much. I probably went every other day, probably not that often, not more than once every other day. Some of the time I walked over this sidewalk, and some of the time I didn't. Q. And you observed nothing wrong with this sidewalk before, did you? A. Yes, I should say so. Q. When did you first observe that there was something wrong with this sidewalk? A. I couldn't answer that; I could not say exactly. Q. First time you went there you didn't see anything wrong with it? A. Probably not. Q. Nor the second time? A. I don't know. Q. Nor could you see it was out of order the first or second time you walked over it--you knew the walk was out of order at this point and you saw it? A. Certainly, I did. Q. You saw this crack in the center of the walk? A. Yes. Q. And you noticed that the walk slanted down on the west side? A. Yes, sir. Q. And you knew all about that? A. Well, I could see that the walk was slanting and open; yes, sir.”

From the foregoing testimony it is clear that plaintiff knew the condition of the walk. As above stated, the defect was produced by the outside blocks of the west half of the walk slanting to the west, thereby leaving a crack which plaintiff testified was 3 or 3 1/2 inches wide in the center. Its condition was patent to a casual observer and there was no latent or hidden defects that contributed to the dangers thereof. It further appears from the cross-examination of plaintiff that he knew and appreciated the dangerous character of the walk, as a few extracts from his testimony, in addition to that quoted above, will show:

“Q. Before you were hurt, when you walked over that walk it didn't look like a bad place to you? A. Yes, it did. Q. You knew it was a bad place? A. Certainly, I will admit that. Q. There wasn't anything to prevent your seeing the walk as you came along there? A. Yes, there was. Q. What was that. A. It was dark. Q. You had walked along there before and when it was dark? A. Yes, I had. Q. You know about this bad place? A. Yes.”

He does not claim that he was paying heed or attention to the condition of the walk at the time of the accident. Upon this point he testified:

“A. I was just walking along there right in the center, along toward the center, talking to Mr. Rea, who was walking along here with me, but just a few feet ahead of me. There was a crack right here in the center of the walk. Q. You were walking in the crack? You were walking between the crack and the outer edge? A. Yes. Q. Just what did you do then? A. I was walking there and my right foot slipped in this crack there and I hit my foot against this. My left foot hit the corner or side, whatever it would be, of this here walk; this block here, it stuck up, and as I stumbled I fell. * * * Q. But for some reason when you came to it on this night you were not thinking about what you were doing or where you were going. A. Not exactly about that, no. Like anybody else would walk along not happening to think of everything. Q. You have said that you have walked over this place of walk (is that true?) without getting hurt? You said you were not thinking at all. A. About the walk, no, not at all. Q. You were not looking either, were you? A. No. Q. Not thinking or looking? A. No. Q. Nor trying to look or trying to think? A. No, sir; there was...