Cressy v. Town of Postville

• Decision Date: 15 June 1882
• Citation: Cressy v. Town of Postville, 12 N.W. 757, 59 Iowa 62 (Iowa 1882)
• Parties: CRESSY v. TOWN OF POSTVILLE
• Court: Iowa Supreme Court

12 N.W. 757

59 Iowa 62

CRESSY v. TOWN OF POSTVILLE

Supreme Court of Iowa, Des Moines

June 15, 1882

Appeal from Alamakee District Court.

ACTION to recover for personal injuries sustained from a fall upon a sidewalk along a street of the town. The petition is in the following language:

"The defendant is an incorporated town in Allamakee county, Iowa. That long prior to the 23d day of February, 1879, there was constructed along the south side of Tilden street, within said town, a sidewalk, the same being placed one foot from the fence, on the south line of said street, leaving a space of one foot between the fence and the sidewalk and about eight inches to fourteen inches deep, and defendant had negligently suffered said sidewalk to become broken and to remain broken, and that for a long time prior to February 23d, 1879, there was a hole ten inches wide and twelve inches long, and from eight to fourteen inches deep, broken through said sidewalk, and that for more than three months prior to February 23d, 1879, defendant and its officers had due notice of the existence, character and dangerous location of said hole through said sidewalk, and neglected to repair the same that defendant suffered ice and snow to accumulate along the center of said sidewalk, rendering the center of said sidewalk, on the 23d day of February, 1879, almost impassable; that on the night of February 23d, 1879, in walking along said side walk, in consequence of the negligence of the defendant in leaving said space, between the said sidewalk and fence, and suffering the same to remain broken, and snow and ice to accumulate, the plaintiff without any negligence or want of care on her part, stepped through said hole in the sidewalk, was thrown down into the space between the walk and fence, and was seriously and permanently injured, suffering great pain, physical and mental, and rendered unable to perform labor of any kind; and claiming damage in the sum of five thousand dollars."

The answer denies the allegations of the petition and avers that the accident was caused by plaintiff's negligence.

There was a verdict and a judgment rendered thereon for plaintiff. Defendant appeals.

REVERSED.

S. S Powers and L. E. Fellows, for appellant.

Robert Quigly and L. O. Hatch, for appellee.

OPINION

BECK, J.

I.

The District Court at the trial of the case gave the jury an instruction in the following language:

"5. If the defendant suffered snow to accumulate on its sidewalk and to become packed in ridges and so to remain an unreasonable time and become ice, and the sidewalk thereby became dangerous to pedestrians, and if this condition of the sidewalk was actually known to the town authorities, or if it had existed so long that it should have been known, and may reasonably be presumed to have been known to the authorities or if such condition had become publicly notorious, and had existed after such actual or presumptive knowledge or public notoriety long enough to give time to remove the snow and ice, then the defendant did not use ordinary care, but was guilty of negligence in respect to the...