Finnane v. City of Perry

• Decision Date: 18 February 1914
• Parties: MARIE FINNANE, Appellee, v. CITY OF PERRY, Appellant
• Court: Iowa Supreme Court

145 N.W. 494

164 Iowa 171

MARIE FINNANE, Appellee, v. CITY OF PERRY, Appellant

Supreme Court of Iowa, Des Moines

February 18, 1914

Appeal from Dallas District Court.--HON. LORIN N. HAYS, Judge.

ACTION at law to recover for injuries sustained by plaintiff while passing along and over a sidewalk in defendant city, which was covered with ice and snow. In addition to a general denial, defendant pleaded that the action was not brought in time, and that plaintiff gave no preliminary notice, as by statute provided. On these issues the case was tried to a jury, resulting in a verdict and judgment for plaintiff in the sum of $ 250, and defendant appeals.

Affirmed.

H. S Dugan, for appellant.

White & Clarke and Giddings & Blake, for appellee.

DEEMER J. LADD, C. J., and GAYNOR and WITHROW, JJ., concur.

OPINION

DEEMER, J.

The accident occurred upon one of the public and much frequented, residential streets in the defendant city on the 13th day of February, 1912, and an original notice of the suit was served on May 13, 1912. The original petition was filed on May 14, 1912, and the grounds of negligence pleaded therein were as follows:

That the defendant permitted said sidewalk to be constructed with the surface thereof sloping so that the same was made slippery by melting snow and ice. That, during the several weeks immediately prior to the injury herein alleged, large quantities of snow and sleet had fallen and banked upon said walk and had partially melted and become packed and frozen in such a manner as to have an uneven surface and to lay in ridges in rounded form so that the said sidewalk was slippery and dangerous to pedestrians. That the defendant was negligent in permitting said sidewalk to be so constructed and in allowing the snow and ice to accumulate from and remain thereon in the dangerous condition hereinbefore described.

Defendant pleaded that the action was barred because not commenced within three months from the time of the accident, and that the original notice was not sufficient to meet the requirements of section 3447, paragraph 1, of the Code of 1897. Demurrer to this answer was sustained. Thereafter, and on November 15, 1912, plaintiff filed an amendment to her petition, claiming additional damages, and at a proper time defendant insisted that this amendment could not be considered. The original notice we have been unable to find in the record; but in its instructions the court said to the jury that the action was commenced in time, although the jury should confine its investigations to the grounds of negligence stated in this notice, which were said to be:

That the defendant had permitted its sidewalk at the point in controversy to become in a defective condition in that the same was broken, uneven, and covered with ice and snow. These allegations in plaintiff's notice must be held to be the charge of negligence against the defendant on which and for which the plaintiff must recover against the defendant, if at all. (The court further instructed.) That as to the other allegations in the plaintiff's petition that the defendant has permitted the sidewalk in question to be improperly constructed with surface thereof broken so that the same was made slippery by melting snow and ice, or from want of proper drainage, and that by reason of such defective construction, as charged in said petition, you are instructed that such allegation would constitute a ground or cause of action against the defendant, and that the cause of action thereon was not commenced within three months from the happening of the alleged injury, and that the same is now barred. You will therefore, in your further consideration of this case, consider only the act of negligence set forth and charged in said notice, and as the same are heretofore set forth as a basis for a recovery.

Some complaint is made by defendant of these instructions, but the complaint is without merit. The instructions are clear, and the jury could not have been misled thereby. The prejudice, if any, was to the plaintiff, but she is not complaining; and, as the original notice is not in the record, we must assume that the court below properly interpreted it. The plaintiff might well complain of this instruction; but it was evidently nonprejudicial to the defendant.

II. The accident occurred on the south side of Warford street, between Third and Fourth, and about fifteen feet west of Fourth street, and the plaintiff described the condition of the place as follows:

The accident occurred while I was walking west over the sidewalk about half past nine in the forenoon. The walk was covered with a light fall of snow, and the walk was in ridges or bumps covered with ice which was smooth on top. I did not know of the condition of the walk at the time I went upon it. The snow on the walk was between an inch and two inches deep. The walk at the particular place where I fell was uneven. The edge of the walk was pushed up by a tree growing near by, and the walk was in a slanting position. There was a sloping terrace about three or four feet high on the south side of the walk. The terrace was close to the walk, and there was no level ground between them. I was walking along and slipped backward, which gave my head a jerk, and I fell on my right elbow.

Other witnesses testified as follows regarding its condition at or about the time of the accident, and before and after, and we here quote some of their testimony from the record. One said:

I was along there between the 1st and the 18th of February. I traveled over the walk twice during that time. I do not know the exact time, except it was between the 1st and the 18th of February. There was about two weeks between my trips over this walk, and my last trip was not later than the 18th of February. The first time I went over the walk I noticed the condition of the walk, and it had snow and ice on it. At that time I was going east from Third to Fourth street, and the walk was rough in places. It was rough toward the east end. It was also slick. The last time I went over the walk there had been some snow, but it was rough, and the place was slick so it was difficult for me to get over. On the last time that condition of being rounded up, smooth, and slippery continued as I had seen it before. I do not know how long that snow and ice had been on the walk. There was ice on the walk and snow over it. This condition extended over quite a little strip of the walk just west of Fourth street and on the south side of Warford. There was more snow on the walk the last time I crossed it than the first time. It appeared to be thawing. It was not thawing the first time. The water that thawed out of the snow appeared to stay mostly on the walk. There was snow on the walk that day. I could not say how much but enough to cover the ice. The snow was level and had footprints in it. I could see the ice through the prints. The ice was slick in some places, but I do not remember what part of the walk that was on. There was no fresh snow that day. It might have snowed a little bit the night before, but there was no snow on this day. In some places the ice was smooth and in others it was not. The smooth places were where it was kind of raised up where the water ran over it.

Another testified:

Last winter during January and February I frequently passed over the walk on the north side of the Pattee place on Warford street. I might have passed there as often as once a day. I am acquainted with the members of the city council of the city of Perry and know the men who were on the council last February. Mr. Charles Marckres is a member of the board. His home is the next place east directly across the street from the Pattee place. I do not know whether or not he was in the habit of walking along the south side of Warford street in going to his home or not. Mr. Rouse is also a member of the city council. His home is the second block east and one block south of the Pattee home. I am acquainted with E. Kelley, who is a member of the city council. Mr Kelley is in the stock business, and I have seen him driving up and down the street at different times. I remember about the time the snow commenced to fall in Perry last winter. I think it was during the holidays and about Christmas time. I know there was snow on the...