Dempsey v. City of Dubuque

• Decision Date: 13 February 1911
• Citation: 132 N.W. 758,150 Iowa 260
• Parties: DEMPSEY v. CITY OF DUBUQUE.
• Court: Iowa Supreme Court

150 Iowa 260

132 N.W. 758

DEMPSEY

v.CITY OF DUBUQUE.

Supreme Court of Iowa.

Feb. 13, 1911.

Appeal from District Court, Dubuque County; Robert Bonson, Judge.

Action for damages resulted in a judgment against defendant, from which it appeals. Reversed.George T. Lyon and Edgar H. Willging, for appellant.

John P. Frantzen, for appellee.

LADD, J.

Shortly after 1 o'clock p. m. of January 4, 1905, the plaintiff in passing along Julian avenue turned nearer the outside of the walk, and, as she did so, slipped and fell, suffering serious and permanent injuries. At the intersection of this avenue with other streets, there was a water fountain. Upon reaching that, she had met John Kingsley, and the two had walked in an easterly direction along the north side of the avenue for about two blocks until they reached Mrs. Carden's candy store, he taking the out or north side of the traveled portion of the walk and she the inside. The snow was 4 1/2 inches deep, and had not been removed from the sidewalk except in front of the store. A way wide enough for two to walk had been tramped down in each direction from the store and cinders sprinkled thereon, but in front of it the snow had been removed, except a ridge of packed snow and ice somewhat north of the sidewalk and extending the entire width of the building, probably from the tramped way on one side to that on the other. Plaintiff took the inside of this ridge, and, as she approached the easterly extremity of it, undertook to pass over it diagonally to the southeast in order to reach the traveled way beyond, and in doing so slipped and fell; and on the part of defendant it is contended (1) that the city was not negligent in permitting the walk to be in the condition, and (2) that plaintiff was guilty of contributory negligence.

[1] It is well settled that the mere fact that snow and ice were on the walk and it was dangerous does not render the city liable. It is only when the ice or snow is suffered to remain upon the sidewalk until by tramping of pedestrians, freezing and thawing or other cause, the surface has become rough, rigid, rounded, or slanting so that a person in the exercise of ordinary care cannot pass over it without danger of falling, that the defect is such as to render the city liable. Tobin v. City of Waterloo, 131 Iowa, 75, 107 N. W. 1031;Broburg v. City of Des Moines, 63 Iowa, 523, 19 N. W. 340, 50 Am. Rep. 756;Huston v. City of Council Bluffs, 101 Iowa, 33, 69 N. W. 1130, 36 L. R. A. 211;Hofacre v. City of Monticello, 128 Iowa, 239, 103 N. W. 488.

[2] 2. There was some variance in the evidence as to the condition of the sidewalk. This was of brick 11 1/2 ft. wide. The candy store was back from the street line, but between it and the sidewalk brick were laid so that from the southwest corner to the outside of the walk the distance was 16.2 feet and from the southeast corner 2 feet less. The building was but a fraction of a foot over 16 feet wide. Some of the witnesses say that snow was falling and had covered the walk on each side of the ridge, while others testified none save the ridge was on the walk. The estimates concerning the ridge also differ; the west end varying from 8 inches to 2 feet, and at the east end from 2 to 3 1/2 feet. Some witnesses thought the packed ice and snow but one half to an inch thick, while others estimated it from 2 to 3 1/2 inches, and possibly more. Several testified that it was uneven, slanted toward the sides, and was slippery. But the ridge extended only in front of the candy store, and beyond each way was the trampled way sprinkled with cinders. Most of the evidence was directed especially to the ridge as an entirety, but there was some testimony that it was not so thick at the east end and this was somewhat confirmed by the photograph taken shortly after the accident. In our view of the case, it is unnecessary to determine whether the city was negligent in permitting such an accumulation of ice and snow, for, if this were to be conceded, the evidence was such that the jury must have returned a verdict for defendant under instruction 16 given by the court: “You are instructed that the defendant city is not required to keep its sidewalks free from snow and ice for their entire width, but is required only to keep them in reasonably safe condition for persons traveling over the same while in the exercise of ordinary care. If there was a clear space on the sidewalk in question, in front of the piece of property where the accident is alleged to have occurred, which the plaintiff could have walked over, and she saw, or could have seen by the use of ordinary care and in the exercise of reasonable diligence, that there was a defect on such sidewalk in the nature of a ridge of ice or snow packed hard, but she still walked upon said ridge, or put herself in a position where she would have to walk upon or over such ridge, while charged with knowledge of the presence of such ridge, and knowing of another and safer way on such walk which she could have used without material inconvenience to herself, then you are instructed that the plaintiff was guilty of contributory negligence, and, if she was in any degree guilty of such contributory negligence, then your verdict must be in favor of the defendant in this case.” Though plaintiff had not been along the walk for six weeks and had no previous knowledge of its condition, she must have been fully aware thereof as she approached that portion of it in front of the candy store in broad daylight, between 2 and 3 o'clock p. m. She could, and did, see the alleged obstruction and the clear spaces on each...