Earl v. City of Cedar Rapids

• Decision Date: 13 January 1905
• Citation: 102 N.W. 140,126 Iowa 361
• Parties: EARL v. CITY OF CEDAR RAPIDS ET AL.
• Court: Iowa Supreme Court

126 Iowa 361

102 N.W. 140

EARL

v.CITY OF CEDAR RAPIDS ET AL.

Supreme Court of Iowa.

Jan. 13, 1905.

Appeal from Superior Court of Cedar Rapids; J. H. Rothrock, Judge.

Action at law to recover damages for injuries received by plaintiff in falling into a cellarway in or near one of the streets of the defendant city. The defendants, other than the city, are the owners and occupants of the abutting property, who constructed and maintained the alleged defect. Trial to a jury; verdict and judgment for plaintiff against all the defendants; defendants appeal. Affirmed.J. N. Hughes and Bingham & Mekota, for appellants.

Rickel, Crocker & Tourtellot, for appelleee.

DEEMER, J.

Abutting on what is known as Sixteenth avenue west, in the defendant city, is a building known as No. 73, owned, occupied, and used by the defendants, other than the city, as and for a saloon. The front of the building was about two feet from the street line, but the space, except as we shall hereafter notice, was covered with brick, as was the sidewalk in the street, and there was nothing to mark the exact place of the lot line. Immediately in front of the door to the saloon, which was in the center of the building, was a cement step or flagstone, about three feet wide and five or six feet long. Immediately to the west of this step was a cellar or areaway, three feet and one inch wide and six feet long, extending along the side of the building, and running out into the sidewalk in the street at least one foot. This cellarway had a trapdoor, which, when closed, was on a level with the street and the lot outside the street. This trapdoor swung toward the building, and, when opened, rested against the side of the building. There were no barriers or railings around this areaway, and nothing to warn travelers of danger when the door was open. This condition had existed for at least two years prior to the time plaintiff received his injuries. At about 7:45 in the evening of March 2, 1903, plaintiff went into the saloon to get a drink; accomplishing his purpose, plaintiff started to leave the saloon, stepped from the door onto the flagstone, and, wishing to go west, started in that direction, and, stepping from the flagstone, landed at the bottom of the areaway--the trap door being open--and received the injuries of which he complains.

The evidence shows that the cellar to this building was used for storing beer and ice, and that the trapdoor for a considerable period had been open at least once, and sometimes twice, a day. There was also testimony which tended to show that this door was frequently left open both day and night before the accident occurred. Some of the witnesses say that they found it open at least three times a week for some months prior to the time plaintiff was injured. There is no doubt this arrangement in its unguarded condition was extremely dangerous. The flagstone and the areaway extended some distance into the street, and there was nothing to denote the line of demarcation between the lot and the street. But for the flagstone, the lot and street were upon a common level, were all improved as a part of the street, and, in fact, the sidewalk extended up to the front wall of the building. The trapdoor, when closed, was on a level with the street. There were no guards or barriers of any kind to prevent persons from falling into the opening when the door was raised. That the owner of the property and the tenants who used it were negligent, there can be no doubt. Whether or not the city was negligent was a question of fact for a jury, depending, of course, upon the method of construction and use made of the premises, and the number of times the door had been left open and unguarded, and all other relevant facts and circumstances in the case. This issue was submitted to the jury, and it found all defendants negligent.

But it is contended that, as the areaway was not wholly within the street, and as plaintiff did not approach it from the street, but from abutting property, the city owed him (plaintiff) no duty, and was not guilty of actionable negligence. We cannot agree to this construction. Both the flagstone and the areaway were partially in the street, and the opening was such as to constitute a menace to all who might be using the street. When plaintiff stepped from the flagstone he was in the street, and, on account of the use made of that part of the lot and the front of the building, and the nature of the improvements thereon, the defendant city did owe a duty to persons rightfully thereon. Even an excavation entirely outside the street line, but so near thereto as to endanger the traveling public, is held to be a...