Dunn v. City of Oelwein
| Decision Date | 15 December 1908 |
| Citation | 118 N.W. 764,140 Iowa 423 |
| Parties | FRANK E. DUNN, Appellant, v. THE INCORPORATED CITY OF OELWEIN |
| Court | Iowa Supreme Court |
Appeal from Fayette District Court.--HON. A. N. HOBSON, Judge.
ACTION to recover damages for personal injuries received in falling from a sidewalk alleged to have been maintained in an unsafe condition. At the conclusion of plaintiff's evidence the court on its own motion withdrew the case from the jury and entered a judgment for the defendant, and from this judgment plaintiff appeals.
Reversed.
Loren Risk, E. J. O'Conner, W. C. Lewis, and Redmond & Stewart for appellant.
John Jamison, Jay Cook, and Clements & Estey, for appellee.
The allegation as to defendant's negligence and plaintiff's resulting injury was that while plaintiff was walking south along a plank sidewalk on the east side of Sixth Avenue East, a common thoroughfare between First and Second Streets East, in the defendant city, about half past three o'clock on the morning of the 28th day of October, 1906, it being very dark, and there being no street lights to lighten said street, and while plaintiff was using due care and caution, he stepped off the end of the sidewalk where it terminated at an elevation of more than three feet from the ground, and fell to the ground with such violence as to break the bones of his right leg. It was also alleged that the sidewalk where plaintiff fell had been in a dangerous condition without guards or railings for more than a year. There was evidence tending in general to support the allegations of plaintiff's petition, and the case should have gone to the jury, unless, as to some particular matter necessary for plaintiff to establish, there was no evidence which the court could properly submit to the jury. The court assigned no grounds for its action in taking the case from the jury, and we shall discuss only such possible grounds as are suggested in appellee's argument. The first of these is an alleged failure to show any duty on the part of the city to maintain a safe sidewalk at the place where the injury was received, and the second is a failure to show plaintiff's freedom from contributory negligence.
I. It was alleged in the petition that Sixth Avenue East, between First and Second Streets East, in the defendant city, was a common thoroughfare, and that the sidewalk in question was along the east side of said street in front of lot 8 of the block fronting on the east side thereof, and that said sidewalk terminated at the south line of said lot, and there was no walk in front of lot 7 of the same block lying south of said lot 8. Over defendant's objection, witnesses for plaintiff were allowed to testify that there was a traveled road along that part of the street in question in front of lot 8, and that said street extended to the south line of lot 7--that is, to the south line of the next lot south of the point where plaintiff received his injury. From the cross-examination of these witnesses we infer that Sixth Avenue does not extend south to the next cross-street, or at least that it is not traveled as far as to that street, but that it does extend northward for some distance. The contention for appellee is that there is no allegation or proof of a platted street accepted by the city in front of lot 8 above referred to, and that therefore the sidewalk in front of that lot was not a public walk which the defendant city was under any obligation to render safe for travel, and that parol evidence was not admissible to show that the street was public.
This contention, we think, is unsound. It is the duty of a city to exercise reasonable care in keeping safe the sidewalks along thoroughfares which are open and used as such, regardless of whether there has been a formal acceptance of the dedication of such thoroughfares to the city as streets. The question is one of fact, to wit, was the sidewalk, constructed apparently for public travel along a street or thoroughfare, in general use by the public--that is, open and used for travel? Harrison v. Town of Ayrshire, 123 Iowa 528, 99 N.W 132; Kircher v. Town of Larchwood, 120 Iowa 578, 95 N.W. 184; Brown v. Town of Chillicothe, 122 Iowa 640, 98 N.W. 502. Certainly it is not the...
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